50 N.C. 261 | N.C. | 1858
The suit was commenced by warrant against Thomas Britt and Edward R. Streator, merchants and partners, trading under the name of Britt and Streator, to answer Roland R. Sellers to the use of James A. Liles, of a plea of debt, due by note for sixty dollars, with interest. From the judgment of the justice of the peace there was an appeal to this Court, and here the plaintiff declared in debt against Thomas Britt and Edward H. Streator as partners, c., upon a bond which is set forth as being signed by "Britt and Streator" with a scroll representing a seal. The defendants admitted the *262 execution of the bond, whereupon, the plaintiff read it to the jury and closed his case.
The defendants then produced, in support of their plea of set-off, justices' judgments in their favor, against Roland R. Sellers, the plaintiff, for more than the amount of the debt claimed by him.
The plaintiff then asked leave to enter a nolle prosequi as to Britt, which was allowed, and then he proved that the signing of Britt and Streator to the bond was in the handwriting of Edward H. Streator; and the plaintiff contended, that inasmuch as one partner cannot bind the other by deed, that this was the debt of Streator alone, and, therefore, the defendants' judgments could not be allowed as a set-off. But the Court held otherwise, and the plaintiff excepted.
Verdict and judgment for the defendant, and appeal. The debt for which the def't. Streator endeavored to give the security of the sealed note of Britt and Streator, who were partners in trade, was undoubtedly the debt of the firm, and the judgments obtained by them against the plaintiff, possessed that mutuality of claim which justified the Court in allowing the one to be set off against the other. Streator certainly did not execute the bond as his own individual obligation, and it cannot be treated as such. In the case of Delius v. Cawthorne, 2 Dev. Rep. 90, it was decided that an agent, who had only a parol authority, could not bind his principal by a bond, nor would the instrument, though sealed by him, in the name of his principal, be the bond of the agent. It would not be so, because it did not purport to be his deed. For the same reason, though one partner cannot bind the firm by deed, yet the deed will not be that of the partner who executes it. And, in truth, a debt intended to be thus secured, would remain the simple contract debt of the partnership, and must be so treated in any action upon it. *263
Considered in that light, and supposing it to have been declared upon in a proper manner, the plaintiff could not, by suing one only of the partners, prevent the firm from pleading and proving as a set-off a debt to them from the plaintiff.
In this particular case, there is another fatal objection to the plaintiff's recovery. From the record, it appears that he declared upon a bond executed by two obligors, and according to his own allegation, he proved a bond executed by one person only. The instrument proved, then, was a different one from that which was declared on; so there was a fatal variance between the pleadings and the proof.
PER CURIAM, The judgment must be affirmed.