2 Iowa 504 | Iowa | 1856
On the trial of this cause, in the District Court, the plaintiffs asked that certain instructions should be given to the jury, which were refused by the court, and the refusal is assigned for error.
By these instructions, the court was asked to charge the jury as to the right of a majority of the partners, against the will of a minority, to bind the firm in the consummation of a contract made before dissolution; and as to the effect and validity of the bill of sale from John Frink & Co. to plain
Neither does it appear, that there was anything in the written articles of partnership, if any such existed, to limit the rights of a majority, or to qualify, what we understand to be otherwise, the well settled rule of law, that in all matters within the scope of partnership dealings, or falling within the ordinary business and transactions of the firm, so long as the relation exists, each partner has the right and power to bind the partnership. By virtue of his relation, he is constituted the general agent of the firm, and is vested with a power, enabling him to act at once as principal, and as the authorized agent of his copartners. Story on Partnership, §§ 101, 104; Van Kueren v. Parmlee, 2 Comst. 525; Wilkins & Rollins v. Pearce, 5 Denio, 540. But, whilst each partner may bind the partnership by his contracts, in any matter within the limits of the partnership business, he cannot bind it by any contract beyond those limits; and a dissolution of the partnership, puts an end to his authority. Story on-Partnership, § 322; Bell v. Morrison, 1 Peters, 331. This may be stated as the general rule;
In the fulfillment of the outstanding engagements of the firm, and in the settlement of its business generally, the authority of each member remains the same, after as before -dissolution. The rights of the different partners are not changed, and where there-is no stipulation in the partnership articles, to limit or control their rights, a majority of the partners, acting fairly, and in good faith, may conduct the partnership business, notwithstanding the dissent of a minority. Story’s Partnership, § 125; Collyer on Partnership, 105. It does not appear, in this instance, that there was
Without undertaking to decide, whether the acts of the members of the firm present, when the bill of sale was about to be executed, were in good faith, or not, it appears to us, that there were circumstances attending the sale, which should have led the court below to submit that question to the jury. A majority of the firm, cannot arbitrarily trifle with the rights of the minority. The dissent of Walker, in the present instance, should have had the effect to arrest the sale to plaintiffs, until the objection urged by him was inquired into, and its truth, or falsity, satisfactorily ascertained. His dissent came in good time, and with notice to the plaintiffs. His reasons for protesting were given, and his statements were entirely uncontradicted, and unexplained. Not only were the other partners present, silent in regard to them, but they attempted, in the absence, and without the knowledge, of Walker, to get up another bill of sale, which should, avoid the objections made to the first. Walker owned one hundred and twenty-one of the three hundred and ten shares of the capital stock of the firm, and was certainly entitled to some voice in its deliberations, and it was a legitimate question for the decision of the jury, whether
In refusing tbe second, third, fourth, and fifth instructions, asked by tbe plaintiffs, and in giving tbe third and fourth, as modified by tbe court, tbe jury were in effect told, that the majority of tbe firm could not, under any circumstances, overrule tbe minority in tbe management of tbe business, and that if one member protested against tbe sale, bis interest in tbe property would not pass to tbe purchasers. We think that these instructions, as asked by tbe plaintiffs, should have been given, without tbe modification added by the court, and with tbe single qualification, that tbe jury should believe that tbe majority of tbe firm, in making tbe sale, were acting in good faitb. Tbe third and fifth instructions, given at tbe request of defendant, are equally erroneous, in laying down tbe law to be, that, “if tbe bill of sale was made without Walker’s assent, and tbe same was known to plaintiffs, it would not convey bis interest in tbe property and that, “ after dissolution, no partner has a right to convey partnership property in tbe name of tbe firm, without tbe consent of all tbe partners; and if be does, bis acts will not bind any partner who dissents therefrom, and will not convey such dissenting partner’s interest.”
We have given our reasons, why we think tbe court erred in giving these instructions, and why tbe jury should not have been charged, that Walker’s protest prevented bis interest in tbe property from passing to plaintiffs, under tbe bill of sale. Tbe question, whether it passed or not, was contingent, upon a fact to be ascertained by tbe jury, viz : whether tbe majority of the firm, in making tbe bill of sale to plaintiffs, were acting in good faitb towards Walker. The plaintiffs were entitled to have this question passed upon, and settled by tbe jury. If tbe sale and transfer were made in good faitb, tbe interest of Walker in tbe property, as one of tbe partners, passed witb that of tbe other members
We have said this much upon the questions arising upon the bill of sale of July 3d, and Walker’s protest against the same, because they have been^argued at length by counsel, and are intrinsically important and interesting, whatever may be the effect of the conclusions we have arrived at upon the decision of this cause. We proceed to the other questions, raised by plaintiffs’ motion for a new trial. It seems to us, that the question whether the interest of Walker in the property, passed by the bill of' sale of July 3d, 1854, to plaintiffs, is altogether secondary to the question, whether or not the whole of the property had passed to Walker, under the bill of sale of John Erink & Co., of June 10th, 1854 ? Walker claimed, not only an interest as a member of the firm, which he was unwilling should pass to plaintiffs, but he claimed that he had purchased the horses and coaches in dispute, as a part of the stage stock on the Burlington and Peoria route, and that they were his own, and not the property of the firm. His objection to the bill of sale to plaintiffs, was that the property was not Erink & Co.’s to convey; and whether it was or not, is the important question in this cause? Erink & Co. sold to Walker, on the 10th of June, all their stage stock in the state of Illinois. It was sold in gross, and for a sum in gross. They, on the 26th of May, agreed that on the first of July succeeding,
The court charged the jury, that if the property in controversy was not in the state of Illinois on the 10th, the title of the same did not pass under the bill of sale, according to the strict letter of the same; but that they were authorized to judge and determine what was the intention of the parties; and if they thought it was their design to sell to Walker, all the stage stock that belonged to the Burlington and Peoria route, they should so determine by their verdict, and give to defendant all the stage stock belonging to the Hlinois route, wherever it might be temporarily, or casually situated. This, in substance, is the instruction of the court,
The plaintiffs’ motion for a new trial rests upon the alleged ground, that the verdict was against the evidence, and against the instructions of the court, and that the jury did not find the value of the property. The jury were told that they were to decide, whether the property in controversy belonged legitimately to the Illinois, or to the Iowa
The objection that the verdict of the jury does not find the value of the property, is not, in our opinion, well founded. We must presume that the jury were properly instructed by the court, as to the measure of damages, if they found for the defendant; and there is good reason to believe that the value of the property replevied, with interest, was the amount found by the jury. The finding of the value of the property, would be mere matter of form. If the amount of damages in this case were too small, it might be a matter of complaint on the part of defendant. We do not understand the plaintiffs to complain that the damages are excessive. We may state, that we have not examined the questions raised by plaintiffs’ third and fifth assignment of errors, because the ruling out the answer of Yernon to the third cross interrogatory, and the verbal instructions given by the court, as to the effect of the bill of sale to defendant, dated June 10, 1854, were not excepted
Judgment affirmed.