75 N.C. 417 | N.C. | 1876
When one member of a firm buys goods for the firm on his own credit, which goods are received and used by the firm withoutdisclosing the fact that he is a member of the firm, the vendor has a right to hold the firm liable on the ground that he who gets and uses goods ought to pay for them. This proposition is sustained by the cases, and is so consonant to every principle of fair play (423) and common honesty as not to require the authority of cases to support it. If a vender sells goods to a firm and chooses to take the obligation of the purchasing parties, and waives his right to hold the firm liable, he may do so. But in such a case it is necessary for the firm to prove that the vendor knew that the party was a member of the firm and elected to give credit to the purchasing parties alone, in other words, to take less instead of the greater security to which he was entitled.
In our case the true question was, Did the plaintiffs know that the goods were bought for the firm of Plummer, Lewis Co.? This is agreed. In the second place, in giving credit to Plummer, Young Co., did the plaintiffs know that Plummer, Young Co. was a member of the firm of Plummer, Lewis Co., and with this knowledge elect to give the credit to Plummer, Young Co. and waive the right to hold the firm of Plummer, Lewis Co. responsible for the goods which were bought for its use, and of which it had the benefit? There is error in not submitting the case to the jury in this point of view.
As the case goes back for another trial, it may be well to observe the fact that Plummer, Lewis Co. had agreed to allow one of the firm, to wit, Plummer, Young Co., 2 1/2 cents commissions for making the purchase was not made known to the plaintiff, and it is not seen upon *302 what principle they could be affected by it. So it is not seen how the fact that after Plummer, Young Co. went into bankruptcy Lewis settled the price of the goods with the purchase of a note from the assignee in bankruptcy, given for the price (it is not stated at what time the note was given) could in any way affect the plaintiffs' cause of action.
PER CURIAM. Venire de novo.
Cited: Pepper v. Harris,
(424)
