knowledge of Irwin, must be rejected; for it is not claimed that any foundation in proof existed for it. The only remaining ground for the implied authority by which it can be claimed that Irwin was bound by the contracts of his partner is that arising from the intrinsic nature of the business in which the partnership was actually engaged, or from the usual and ordinary course of conducting it at the locality where it was carried on. What the nature of that business in each case is, what is necessary and proper to its successful prosecution, what is involved in the usual and ordinary course of its management by those engaged in it, at the place and time where it is carried on, are all questions of fact to be decided by the jury, from a consideration of all the circumstances which, singly or in combination, affect its character or determine its peculiarities; and from them all, giving to each its due weight, it is its province to ascertain and say whether the transaction in question is one which those dealing with the firm had reason to believe was authorized by all its members. The difficulty and duty of drawing the inference suitable to each case from all its circumstances cannot be avoided or supplied by affixing or ascribing to the business some general name, and deducing from that, as a matter of law, the rights of the public and the duties of the partners. Dealing in grain is not a technical phrase from which a court can properly infer as matter of law authority to bind the firm in every case, irrespective of its circumstances; and if, by usage, it has acquired a fixed and definite meaning, as a word of art in trade, that is matter of fact to be established by proof found by a jury. * * As the judgment now under review would have to be reversed for the error just pointed out, it is not necessary, for the purpose of disposing of the present writ of error, to proceed further to examine other assignments; but as the case must be remanded for a new trial, in which the remaining questions may again arise, it seems appropriate now to dispose also of them. * The judgment of the circuit court is therefore reversed, with directions to grant a new trial; and it is so ordered.1 1"In a commercial partnership the extent of a partner's power to bind the firm partner to bind his copartner is a question of fact, and the burden of proof to establish the facts as to the validity of contracts so executed by one memher of such a partnership rests with the party claiming to hold the firm Per Burnam, J., in Alsop v. Trust Co., 100 Ky. 375, 38 S. W. 510 liable." (1897). SECTION 3.-PARTICULAR POWERS CONSIDERED.1 ROTHWELL v. HUMPHREYS et al. (At Nisi Prius, before Lord Kenyon, C. J., 1795. 1 Esp. 406.) Assumpsit for money lent. Plea of the general issue. The defendants were partners, linen drapers, in London. The plaintiff was a fustian manufacturer at Manchester, Howell, one of the defendants, had gone down to Manchester to purchase goods in the way of his trade, and had, in fact, purchased from the plaintiff to the amount of £500. Being about to return, he borrowed £10 from the plaintiff to defray his expenses to London; and, having drawn a bill on the house in London for the amount of the goods, he included in it the £10 so borrowed, and the bill was drawn for £510. Before the arrival of the goods in London, Humphreys and Howell, the defendants, became insolvent, and the plaintiff stopped the goods in transitu, so that the bill was never presented; and the action was brought to recover the £10 lent only. These facts were proved by a witness called by the plaintiff. The defense relied upon was that the action was brought against both partners for a loan of money, admitted by the evidence to have been made to one of them, and which, therefore, could not be supported. Lord KENYON said that, though the loan of money was to one of the partners, it was lent to him while employed on the partnership. business and on its account; that as such it was competent to him to bind the partnership to the payment of a debt so contracted, and which, in fact, he had done, by including the money lent in the same bill with that for goods sold clearly on the partnership account. Verdict for the plaintiff. BOND v. GIBSON et al. (At Nisi Prius, before Lord Ellenborough, C. J., 1808. 1 Camp. 185.) Assumpsit for goods sold and delivered. It appeared that, while the defendants were carrying on the trade of harness makers together, Jephson bought of the plaintiff a great number of bits to be made up into bridles, which he carried away himself; but that, instead of bringing them to the shop of himself and his copartner, he immediately pawned them to raise money for his own use. Gazelee, for the defendant Gibson, contended that this could not be considered a partnership debt, as the goods had not been bought on 1 The power of a partner to sell, mortgage, or assign the firm property has already been considered. in chapter III, section 7 (II), to which cases the student is referred. the partnership account, and the credit appeared to have been given to Jephson only. He allowed the case would have been different, had the goods once been mixed with the partnership stock, or if proof had been given of former dealings upon credit between the plaintiff and the defendants. Lord ELLENBOROUGH. Unless the seller is guilty of collusion, a sale to one partner is a sale to the partnership, with whatever view the goods may be bought, and to whatever purposes they may be applied. I will take it that Jephson here meant to cheat his copartner; still the seller is not on that account to suffer. He is innocent; and he had a right to suppose that this individual acted for the partnership. Verdict for the plaintiff. STECKER, Adm'x, v. SMITH et al. (Supreme Court of Michigan, 1881. 46 Mich. 14, 8 N. W. 583.) GRAVES, J. Plaintiff's intestate brought assumpsit against the defendant as copartners before a justice of the peace to recover for certain brick furnished them. A recovery was allowed in that court, and defendants appealed; but prior to the trial in the circuit court Mr. Stecker died, and the plaintiff was duly authorized to assume the prosecution of the action. On the hearing of the case the circuit judge directed a verdict for the defendants. The plaintiff claimed that the defendants were partners in putting up two certain buildings, and that the bricks were procured by the firm for those buildings and actually used as materials therein. A witness for the plaintiff testified that one of the defendants contracted individually for the brick, and another witness on the same side testified that one of the defendants admitted that brick were received, but that they were on his own account, and not for the partnership. The plaintiff then offered to show that the defendants were in partnership in putting up the buildings for which the brick were obtained and in which they were used, but the court on objection excluded the evidence. This was error. The statement made by the witness that the brick were purchased by one of the defendants on his individual account was not necessarily conclusive. In the first place, it was more matter of opinion than of fact, as represented by the record. But in any court the plaintiff was entitled to lay all the facts before the jury and have their judgment on the question whether the purchase was not a partnership transaction, or at least one which entitled the plaintiff to charge the defendants as partners. If in point of fact they were erecting the buildings as partners, and one of them procured the brick for purpose of the buildings, without any express arrangement with the the plaintiff's intestate that the purchase was an individual purchase, and the brick were used in the buildings, the firm was liable. The judgment is reversed, with costs, and a new trial granted. LEFFLER et al. v. RICE. (Supreme Court of Indiana, 1873. 44 Ind. 103.) DOWNEY, C. J. The appellee sued the appellants for work and labor, for money loaned, for money had and received, for board and lodging, and for wood, provisions, and merchandise, a bill of particulars of which was filed with the complaint. The defendants answered in three paragraphs: (1) A general denial. (2) Payment. (3) Setoff. Reply in denial of the second and third paragraphs of the answer. Trial by the court, finding for the plaintiff, motion for a new trial overruled, and final judgment for the plaintiff. It is urged as a question of law that Rice, one of the defendants, could not bind Leffler, his partner, for the items in question, for the reason that they were foreign to the business of the firm. Two of the items claimed by the appellee were for money loaned, one was for money paid for middlings, and one was for services in the purchase • of grain, etc. The business of the defendants was that of milling. We do not see that the items of indebtedness are such as might not properly and reasonably have accrued in connection with the business. We are aware of the rule of law, stated by the counsel for appellants, that where a person takes a security from one partner in the name of the partnership, in a transaction not in the usual course of dealing, he takes the security at his peril. Money may properly be borrowed by a partner to be used in the business of milling by the firm. The evidence of the plaintiff tends to show that the middlings in question were purchased to be ground over at the mill of the defendants, which would seem to be properly connected with the business of milling; and as to the compensation for purchasing grain for the mill there cannot well be any question. The judgment is affirmed. PORTER v. CURRY. (Supreme Court of Illinois, 1869. 50 Ill. 319, 99 Am. Dec. 520.) LAWRENCE, J. Curry and Majors were partners in the manufacture of wagons, and in August, 1867, sold a wagon to Porter, the appellant, for $110, for which he gave his note. Soon afterwards Porter, by an arrangement with Majors, sold the latter a mare for $200, and received therefor his own note and one executed by Majors for $90. Porter swears, however, that Majors claimed to be purchasing the horse for the use of the firm, and on the credit of the firm, and that he himself supposed he was taking the firm note, instead of the individual note of Majors, and, not being able to read, did not 'discover his error until Majors absconded and he showed his note to a neighbor. Majors absconded to Missouri a few days after the purchase, taking with him the mare. Curry pursued Majors, obtained possession of the mare, and sold her. Porter brought this suit against the firm to recover the $90, and it is resisted on the ground that the mare was not required in the business, and therefore Majors had no power to buy her on the firm credit. It is clear, however, even if the purchase of a horse was not within. the scope and usage of such a partnership as existed between Curry and Majors, yet if the mare was in fact purchased on the firm credit, and if Curry afterwards claimed her from Majors as firm property, and obtained possession of her on that ground, he thereby ratified the act of Majors in buying her on the partnership credit. He cannot be permitted, at the same moment, to claim the benefit of the purchase and deny its obligations. This view of the law was embodied in the sixth and seventh instructions asked by the plaintiff, and they should have been given. For the same reason the first instruction given for the defendant should have been refused. It puts the case to the jury wholly on the question of an original power by Majors to buy on the firm credit, and makes the case turn entirely upon that, leaving the question of ratification altogether out of view. The judgment is reversed and the cause remanded. DUNCAN v. LOWNDES et al. (At Nisi Prius, before Ellenborough, C. J., 1813. 3 Camp. 478.) This was an action on a guaranty alleged to have been given by the defendants for the due payment of a bill of exchange to the plaintiff for £670 15s., accepted by Dickinson & Co., for the price of goods which the plaintiff had sold them. It appeared that the two defendants carried on business together as merchants at Liverpool, and that this guaranty was signed by Lowndes in the partnership firm. Lord ELLENBOROUGH. As it is not usual for merchants, in the common course of business, to give collateral engagements of this sort, I think you must prove that Lowndes had authority from Bateson to sign the partnership firm to the guaranty in question. It is not incidental to the general power of a partner to bind his copartners by such an instrument. The plaintiff, however, was not prepared with any evidence to affect Bateson, and submitted to be nonsuited. GIL.PART.-24 |