Reynolds v. Cleveland

4 Cow. 282 | N.Y. Sup. Ct. | 1825

Woodworth, J.

(after briefly stating the facts.) It is contended by the defendants, that the contract was made with P. Cleveland individually, and that the suit ought to have been against him alone. He was the ostensible person who made the contract. It is also evident that Reynolds did not know there were other persons connected with him, as partners in the mill. I presume Reynolds was satisfied as to his responsibility, without making any particular inquiry. Coming says, in this instance, they relied altogether on him in giving the credit; that the credit would not have been given to P. Cleveland individually, but no communication was made to the plaintiffs 'respecting the partners. That the defendants were jointly concerned at the time, and that the stones were received is not questioned. From this statement, it appears to me that all the defendants are liable. A partnership is a joint undertaking to share in the profit and loss. The defendants stood in that relation to each other, not as general partners, but as jointly concerned in erecting a mill and procuring machinerythey were partners to this extent, (1 Esp. Rep. 29,) and became jointly responsible for articles purchased by one of the partners, and applied to the benefit of the concern. The law is well settled, that if one partner order goods himself, without disclosing the names of the other partners, and the goods be afterwards delivered to them all, they are all liable ; because the delivery and the sale arc considered as forming one entire contract. In such case, the one partner, who buys the goods, does not contract for himself, but on account .of the partnership. This doctrine is fully recognized in the books. (Saville v. Robertson, 4D. & E. 728. Schermerhorn v. Loines, 7 John. 311. Muldon v. Whitlock, 1 Cowen, 390.) It cannot be pretended that the plaintiffs have done "any act to discharge the partners. Admitting that a special contract had been signed by the plaintiffs and P. Cleveland, it would not have that effect, unless it appeared that the plaintiffs had taken him exclusively for their debtor, knowing that there were other partners.

It is also urged that the action ought to have been commenced on the special agreement in writing.

I have not discovered any evidence that there was a written contract, signed by the plaintiffs. The "writing delivered to Corning had not their signature ; it is from that fact to be inferred, that Cleveland merely noted down by way of memorandum, that Reynolds whs to deliver the stones and warrant them. When Reynolds afterwards admitted that there was "an agreement in writing, the presumption is, he had reference to the paper delivered to Corning, for there is no legal evidence of the contents- of any other. If Reynolds liad in his possession a "written contract, he was not called on to produce it. Without that, the defendants cannot give parole evidence of the contents

But if it be admitted, that there was a written contract corresponding with the statement of Reynolds, it is not a valid objection to the recovery. Where the evidence is sufficient to support the general count, supposing the plaintiff had not declared on the special agreement, he is entitled to recover without any attempt to support the agreement. (7 John. 36, 10 John. 132. 4 B. & P. 351. 5 Mass. 391.) There is no special agreement laid. Does the evidence support the general count ? The plaintiffs agreed to deliver the stones for a certain price; after delivery the defendants became liable in indebitatus assumpsit.

The plaintiffs might declare by. a general count, in the same manner as if there had been a delivery in the first instance, and not an agreement to deliver. That part of the agreement relating to a warranty, is a distinct subject. It may or may not entitle the defendants to an action to recover damages. It is not however so connected with the sale of the mill stones, that the plaintiffs’ right to recover for the goods sold, is in the least obstructed by the fact of a warranty. The evidence, therefore, is clearly sufficient to support the general count; for the contract was executed on the part of the plaintiffs. There was nothing more for them to perform. When the contract is executed on the part of the plaintiff, he may declare generally. The law raises a duty for which assumpsit will lie. (4 Binney, 4. 1 Cowen, 378. 1 Chitty, 338. 1 B. & P. 397.)

I am of opinion that the motion for a new trial be denied.

Sutherland, J.

The partnership of the defendants,'at the time when the contract for the mill stones was made by P. Cleveland; and also when they were delivered, is sufficiently established by the evidence; so that they were, in fact, purchased for the use of the firm, though the existence of the firm does not appear to have been known to the plaintiffs; and they were therefore, charged to P. Cleveland only. Independent of the written, special agreement, and striking that out of the case, I think it is clear that the defendants are liable. The contract was for the benefit of the firm; and within the scope of the partnership. The partnership was in a mill, and the contract for mill stones, an article of indispensable necessity in the prosecution of the business. It was a contract, therefore, which each partner had authority to make for the whole. It is then, in principle, a case of dormant partners, in which a contract within the scope of the partnership, made by the ostensible partner in his own name, is sought to be enforced against the firm. There can be no doubt of the liability of the firm in such a case. Though the goods be furnished on the credit of the ostensible partner only, the law implies a promise to pay for them, on the part of all those who are entitled to share in the profits. (Saville v. Robertson, 4 T. R. 720, 726, 728, per Ashurst and Buller, Js. Hoare and others v. Dawes and another, Doug. 371. Watson, L. P. 46, 168, 169.) In Schermerhorn v. Loines, (7 John. Rep. 311,) it was held that where a person supplied stores to a ship, of which there were several owners,on the order of one of them, who acted as ship’s husband, and took his note in payment, and gave a receipt in full, it was no discharge of the other owners, especially as it did not appear that the plaintiffs knew, at the time, that there were other owners; and the note not having been paid, a recovery was had against all the partners upon the original cause of action. The same principle was established in Muldon and Montgomery v. Whitlock, (1 Cowen, 290.)

But it is said the action should.have been upon the written memorandum of the agreement, made at the time of the sale. What that memorandum was, is very imperfectly disclosed by the evidence. Corning however, who is the ohly witness that ever saw it, swears expressly that it was not signed by Reynolds; and that it was left in the possession of P. Cleveland ; and contained a warranty of the quality of the stones on the part of the Reynolds; that it was sent to the witness by P. Cleveland, to enable him to obtain the stones, and forward them to the defendants. This evidence leaves it extremely questionable whether the memorandum contained any agreement whatever on the part of P. Cleveland, to pay for the stones. It was left in his possession, not to be signed by Reynolds, although it is said to contain a warranty on his part. It does not appear to have specified either the price, or the terms of payment. It was probably no more than a memorandum on the part of Cleveland, himself, of the quality and description of the stones; and that the plaintiff had agreed to warrant them. The parties agreed upon the description and price of the stones in the presence of Corning, when Cleveland proposed that they should go and reduce it to writing; upon which they left the store of Corning; and the only evidence that they did reduce it to writing, is, that P. Cleveland, some time afterwards, sent the memorandum in question to the witness. It does not appear to be in the hand-writing of Reynolds; and it is expressly shown that it was not signed by him. There is not a particle of evidence that he ever saw, heard of, or assented to it. I do not think, that upon this evidence a jury would be warranted in saying that there was any written contract between the parties. This view of the subject disposes of the objection.

But admitting a special agreement to have been shown: every thing which, so far as appears, it imposed upon the plaintiffs to do, has been done by them. The stones were delivered to the plaintiffs; and nothing remains to be done except the payment of the consideration money, on the part of the defendants. In such cases, the general count of indebitatus assumpsit is sufficient, without noticing the special agreement. This subject was maturely considered by the Court; and all the cases looked at in Porter v. Talcott, (1 Cowen, 359.)

But it is said that the special contract contained a warranty on the part of the plaintiffs; and if they had declared specially, they must have averred and shown performance on their part. If it had been averred, I apprehend the delivery of the stones to the defendants, and their acceptance of them, without complaint, would be, prima facie, evidence of a compliance with the contract in that respect. That is shown in this case. If they were not made according to contract, the defendants were at liberty to show it.

Savage, Ch. J. concurred in the result of these opinions.

New trial denied.