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the same effect. Parke, B., 4 W. H. & G. 629. Sandilands v. Marsh, 2 Barn. & Ald. 678, proceeded on the latter ground.
In a subsequent case a partnership had entered into a contract with a railway company to do certain work; two persons made a sub-contract with them to do part of the work and required clay and coal to make bricks for that purpose. Not being able to procure credit for the coal, there was given by one of the partners in the name of the partnership a guaranty stating that those two persons had a contract requiring a large quantity of coal and engaging to see the coal paid for. On the faith of this guaranty the plaintiffs supplied the coal; and the action was brought therefor against the partnership. There was no evidence of the usage of the defendants in the particular business, or of others in a similar business, nor of the sanction by the other defendants of the act of their copartner. The only question was, whether he had the power in consequence of its being a reasonable mode of carrying into effect an acknowledged partnership contract. And the court of exchequer held that he had not. It was of opinion that to allow one partner to bind another by contracts out of the apparent scope of the partnership dealings because they were reasonable acts towards effecting the partnership purposes would be attended with great danger. Brettel v. Williams, 4 W. H. & G. 628.
It is considered to be now settled, in England, as well as in the United States, that one partner cannot bind the firm by a guaranty of the debt of another, without a special authority for that purpose, or an authority to be implied from the common course of the business of the firm, or the previous course of dealing between the parties; unless the guaranty be afterwards adopted and acted upon by the firm. Sweetser v. French &c. 2 Cush. 314; Sutton &c. v. Irwine &c. 12 S. & R. 13; Hamill v. Purvis, 2 Penrose & Watts 177.
With respect to a bill of exchange or negotiable note made, accepted or endorsed by one partner in the name of the firm, the presumption, when the partnership is admitted or proved, is that the instrument was given or transferred in the regular course of partnership dealings until the contrary is shewn. Doty v. Bates, 11 Johns. 546. But it may be shewn that it was made, accepted or endorsed by one partner, in the partnership name, for that partner's own debt or use, without the knowledge of his co-partner, and that the party bringing the action was acquainted with the circumstances when he took the paper.
Arden v. Sharpe &c. 2 Esp. 524; Shirreff v.
Wilks &c. 1 East 48; Livingston v. Hastie, 2 Caines's Rep. 249; Lansing v. Gaine &c. 2 Johns. 305; Dubois v. Roosevelt &c. 4 Johns. 262, note; Livingston v. Roosevelt, 4 Johns. 262; Crawford &c. v. Stirling, 4 Esp. 209. Lord Eldon considered it settled that if a man gives a partnership engagement in the partnership name with regard to a transaction, not in its nature a partnership transaction, he who seeks the benefit of that engagement must be able to say that though in its nature not a partnership transaction, yet there was some authority beyond the mere circumstance of partnership to enter into that contract so as to bind the partnership; and then it depends upon the degree of evidence. Er parte Peele, 6 Ves. 604; Ex parte Bonbonus, 8 Id. 543.
But this principle is applied in subordination to the rule as to the rights of a bona fide holder for value. Ante, p. 243248. Under that rule a partnership may sometimes be bound although a partner for his own accommodation pledges the partnership and the money comes to his own account only. If indeed it is manifest to the person taking a note or bill that it is upon the separate account, and so prima facie against good faith that he should pledge the partnership and that person sues the partnership, he must shew that the partner from whom he took the note or bill had authority to bind the partnership. But if it is in the ordinary course of commercial transactions, as upon discount, it would be monstrous to hold that a man borrowing money upon a bill or note pledging the partnership, without any knowledge in the bankers that it is a separate transaction, merely because that money is all carried into the books of the individual, therefore the partnership should not be bound. No case has gone that length. Ex parte Bonbonus, 8 Ves. 542.
The doctrine is, that a person receiving a bill of exchange endorsed in the name of the firm by one of the partners need not apply to each of the other partners to know whether he assented to such endorsement. In the absence of all fraud on the part of the endorsee, such endorsement will bind all the partners. Swan &c. v. Steele &c. 7 East 211. In England it has been held, that although a bill endorsed in the name of a firm be passed by one partner to a separate creditor in discharge of his private debt, that creditor may maintain an action on it against the acceptor, when there is no proof of covin between him and the holder, or that what that partner did was without the authority of his co-partner. Ridley v. Taylor, 13 East 182. This decision was greatly influenced by the consideration that if the partner in possession had not for value, or in virtue of some arrangement with the other part
ner, become the proprietor so as to be authorized to deal with the paper as his own, the contrary might have been shewn by the evidence of the partners, which in this case it was competent for the defendants to adduce.
From this case, the New York decisions differ in this that they require the separate creditor who has obtained the partnership paper for the private debt of one of the partners to shew the assent of the whole firm to be bound. Doe &c. v. Halsey, 16 Johns. 34. In that state the principle is established that where a note is given in the name of a firm by one of the partners for the private debt of such partner, and known to be so by the person taking the note, the other partner is not bound unless he has been previously consulted and has consented to the transaction; and the burthen of proof that the partner who did not sign the note, consented to be bound, is thrown on the creditor. The same principle is regarded as applying with greater force, when one of the partners becomes security for another person and attempts to bind his co-partners; it is considered that the creditor must be aware that he is pledging the partnership responsibility in a matter in no wise connected with the partnership business; and that is a fraud on such of the partners as do not assent expressly that the firm shall be bound. Foot v. Sabin, 19 Johns. 157, 8; Laverty v. Burr, 1 Wend. 531. The only distinction between this case and Foot v. Sabin is this: in that case the note was signed by one of the partners in the name of the firm as sureties; here it was endorsed. It was argued that in every general partnership, each member necessarily possesses the power of signing or endorsing negotiable commercial paper in the customary way of business, although the power of pledging the firm as sureties for third persons may not exist. But the court deemed the form of the transaction not material except by way of evidence. It considered that when paper is signed by one partner in the name of the firm as sureties for a third it carries on the face of it evidence that it was not given for a partnership debt, and proof of that fact becomes unnecessary; when it is signed or endorsed in the ordinary manner such proof must be given. But when the fact is established that it was not given for a partnership debt and that the person to whom it was passed knew it, no matter what the form of the instrument is, it does not bind the partners who did not sign or assent to it. These rules have been repeatedly recognized in New York in a long series of adjudications. Wardell &c. v. Hughes &c. 3 Wend. 418; Vallett v. Parker, 6 Id. 619; Bank of Rochester v. Bowen &c. 7 Id. 158; Gansevoort v. Williams, 14 Id. 137. Similar doctrines
have been maintained in other states. Parke v. Smith, 4 W. & S. 290; Chazournes v. Edwards &c. 3 Pick. 4; Chenowith & Co. v. Chamberlin, 6 B. Monroe 60. And in England a decision has been made at nisi prius approximating to the New York doctrine. Green v. Deakin &c. 2 Stark. 347, 3 Eng. Com. Law Rep. 377. In this case a bill for a debt due the plaintiff from one partner having been drawn by him in the name of the partnership, Lord Ellenborough was of opinion that the nature of the transaction was intrinsically notice, and he nonsuited the plaintiff on the ground that one partner had no right to bind another without his knowledge, by drawing a bill for his own private debt.
Still, however, it is competent to shew previous authority or subsequent approbation; a strong case of subsequent approbation raising an inference of previous positive authority. Ex parte Bonbonus, 8 Ves. 544, 5. Assent was inferred in Gansevoort v. Williams, 15 Wend. 139.
4. Rule as to agency when a man's wife has contracted; or he has allowed supplies to any other female.
Sometimes a wife, under the husband's authority, has the general management of his business. He may authorize her to draw, accept and endorse bills in his name; and this may be extended to authorizing her to select some person pro hac vice, to write the name of her husband for her. Having trusted her to exercise her discretion as to drawing, accepting and endorsing, he may trust her also to use her discretion to select the hand of another to carry her intention into effect. If he does, the rule delegatus non potest delegare does not apply to the case. The question is simply whether the evidence shews an authority given by the husband to the wife to sign in the way she did. Lord v. Hall, 8 Man. Grang. & Scott 627; 65 Eng. Com. Law Rep. 627; Felker v. Emerson, 16 Verm. 653; Alexander v. Miller &c. 4 Harris 215.
How far a husband is liable for things furnished to his wife, will be particularly treated of in chapter 32. Independently of the liability arising from the relation of wife, there may be a liability for supplies to a woman on the ground of agency. Rawlyns v. Van Dyke, 3 Esp. 250. A defendant and a woman had lived together at three places, and at each of them had been supplied with goods by the plaintiff. He was authorized by the defendant to supply her at those places on his credit. While living at the third of these places, they separated; she still remained there, when the orders in question were given the plaintiff. He having no notice from the de
fendant of the separation, complied with those orders. Circumstances apparently continuing unaltered when the orders were given, the defendant was held liable; notwithstanding that when the goods were sent in, the separation had existed about a month, and she was then living at another place. Ryan v. Sams, 12 Adol. & El. N. S. 460, 64 Eng. Com. Law Rep. 460.
5. Rule as to agency in the case of a private company or of a club or committee.
In England, there have frequently been actions against persons as members of a club, Delauney v. Strickland, 2 Starkie 416, 3 Eng. Com. Law Rep. 410; Raggett v. Bishop, 2 C. & P. 343; Raggett v. Musgrave, Id. 556; 12 Eng. Com. Law Rep. 160, 260; Flemyng v. Hector, 2 M. & W. 172; Todd &c. v. Emly &c. 7 Id. 427, 8 Id. 505; or member of a private company, Keasley v. Codd, 2 C. & P. 401, note; Maudslay v. Le Blanc, Id.; Perring &c. v. Hone, Id. 401; 4 Bingh. 58; 12 Eng. Com. Law Rep. 189-194; 13 Id. 328; Vice v. Anson, 7 Barn. & Cress. 409, 14 Eng. Com. Law Rep. 63; Braithwaite &c. v. Shofield &c. 9 Barn. & Cress. 401; Bourne v. Freeth, Id. 632; 17 Eng. Com. Law Rep. 404, 460; Dickinson v. Valpy, 10 Barn. & Cress. 128, 21 Eng. Com. Law Rep. 41; Pitchford &c. v. Davis, 5 M. & W. 2; Tredwen v. Bourne, 6 Id. 461; Hawken v. Bourne, 8 Id. 703; members of an election committee, Thomas v. Edwards, 2 M. & W. 215; or railway committee, Barnett v. Lambert, 15 M. & W. 489; Reynell v. Lewis, Id. 517; Wyld v. Hopkins, Id.; Higgins v. Hopkins, 3 W. H. & G. 163; Bailey &c. v. Macaulay, 66 Eng. Com. Law Rep. 815.
In the United States, there was occasion to apply the same principles in Sproat v. Porter &c. 9 Mass. 287; Babb v. Reed &c. 5 Rawle 151; Ridgely v. Dobson, 3 W. & S. 122; and Eichbaum v. Irons, 6 Id. 67. The last case was for a free dinner in Pittsburg, when the event of the presidential election in 1840 was ascertained. A committee directed the plaintiff to prepare a dinner for 1000 persons; and 4000 people, of all political parties, subsequently partook of it, with wonderful cordiality. The action was against four persons, two of whom, before the dinner was ordered, and while the measure was under consideration, spoke and voted against it, but as they eventually submitted to the resolution of the majority, and did not throw up their membership, they were held liable. The order of the committee being given in their presence, and apparently with their approbation, it was considered imVOL. II.-22