| N.C. | May 5, 1819
Everitt upon the application of Carter, took up his note, made originally payable to Fletcher, and by him delivered to Carter, and gave a new note, payable to Carter Porter; which note was subsequently discounted at the Bank of New Bern, and the proceeds applied to the discharge of Carter Porters' note then due the said Bank. Person paid Fletcher the amount due on the note given him by Carter, and brought this action to be reimbursed.
On the trial, the Plaintiff produced an order which was in the following words, to-wit:
"Mr. Isaac Hill, be so good as to let Mr. Thomas Person have any amount of notes or judgments to the amount of a note of Carter Porter, given to Joshua Fletcher, c. 22 April, 1815.
"JAMES PORTER."
Which order bore date prior to the bringing of this action. The Judge, in his charge, instructed the Jury that one partner cannot, by deed, bind his copartner, unless the copartner be present, assenting to the execution of the deed as the deed of the firm; or unless he had previously requested or consented that he might so execute it; in which case, the partner so executing it, would be considered as the agent of the party so assenting, and the one so assenting would be bound by the deed. That the Jury, if satisfied from the circumstances disclosed by the testimony that such was the fact should find for the Plaintiff. That if the Defendant, (324) Carter, in signing the obligation in the name of the firm, acted without any legal authority from Porter, yet, if Porter subsequently promised to pay the Plaintiff the money so by him paid for the firm, such promise would be binding; and that the order drawn by Porter on Hill was a fact from which the Jury might infer such promise.
The Jury found for the Plaintiff. A rule for a new trial was obtained on the ground of misdirection by the Court, and on argument was discharged. The Defendant appealed. A contract of partnership is a contract of agency, and it differs from a pure agency only in this, *241 that, in a pure agency, the agent binds his principal only; in a partnership all the principal or partners are bound, which of course, includes the actor. On this principal is bottomed the powers of one partner to bind the partnership, when he acts within the scope of his powers. How far those powers extend, is generally ascertained by the nature and objects of the copartnership; and this depends on the agreement of the parties evidenced between themselves, generally by an express contract, and as to the world, in addition thereto, by overt acts or visible signs. (I speak not of what makes a man a secret Partner.) These visible signs may be exhibited after a transaction of agency, as well as be concomitant with or before it. For technical reasons, the contract of partnership does not give one partner a right to bind the partnership by deed. To do so, he must have express powers, (under seal as I apprehend,) or he must be actually present and assent to the agency. But be that as it may, the power does not flow from the bare contract of partnership; it rests on some other basis; either one of those before mentioned, or some other.
If this case then stood on the bond alone, which Carter signed for himself and Porter, and which (325) Person joined in as security, although the money arising from the contract was applied to Porter's use, or the joint use of Porter and Carter, without the assent of Porter, he would not probably be liable in this action: for no man can make another his debtor without his consent express or implied. But this assent may, from circumstances, be implied, and when implied it has the same effect as the most express assent. Now, although Carter had no power to sign the bond, so as to bind Porter, yet the bond may be used to shew in what capacity Carter professed to act. In this case he professed to act for the concern of Porter and Carter, as their agent, to bind them by their deed. The money raised by the contract was applied to the use of the partnership, and (which is the key-stone of the case) Porter recognized it as the bond of Porter and Carter, and gives direction for its payment, describing it as the bond of Porter and Carter. It was not otherwise Porter's bond than through Carter's agency for the partnership. How can Porter's recognition be true, otherwise than by a recognition of Carter's agency? He not only by words recognizes the agency, but takes benefit of the effect of the contract; assents to the extinguishment of his own debt, but refuses to take on himself those obligations which his situation as principal or partner imposes. His *242 conduct is, in effect, this; I will recognize the acts of Carter so far as they benefit me, but will not take on myself the liabilities arising from the same transaction. The refutation or exposure is plain. If Carter had not an express binding power from Porter to bind the partnership in this transaction, Porter had his election of disavowing the contract; and it was not required of him to make an express disavowal, a refusal or omission to take any benefit under it would have been sufficient. But having knowingly received the benefits resulting therefrom, he shall also take the burthen, and he shall do the same thing as if he had personally transacted the business. He shall assume all the intrinsic obligations of the actor. In this we do him no injustice, and in (326) this he cannot complain. We impose on him only the intrinsic obligations arising out of his situation, which he voluntarily assumed, and the beneficial effects of which he is now enjoying. Cases may be found, in which, under circumstances somewhat similar to this, recoveries have not been effected; but in which all the principles of law contended for in this case are admitted, and the mistake, if there be any, is in their application. The case in 2 John. 213, is somewhat like this: but wanting an essential part, and that is, the recognition of the bond as a partnership bond. I feel myself imperiously bound by precedents settling or recognising the rules or principles of law. Knowingly to run counter to them when well settled, would be contrary to the duty which I owe to the state, and contrary to the duty which I owe to myself. But as to those cases which only apply principles, which do notprofess to establish or investigate what the principles are, I confess, I do not feel myself bound by them, if I cannot perceive the propriety of the application. In fact, they are looked into as mere exercises, as practising lessons, to enable the Judge the more easily to apply the rules of law; but it was never intended that we should look to the result to ascertain what the rule is. When there is no controversy about the rule on either side, the only question being about the application, the rule is not to be found in the result. Such cases are mere practising lessons; if right, there will be the like decisions again, (I will not say they will be followed,) if wrong, they will be disregarded, as cases where the rule is misapplied. — The rule for a new trial must be discharged.
Cited: Fisher v. Pender,