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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
material that one of them, after the provisions were laid in and were in the hands of the cook, called on the plaintiff, stated that it would be very difficult to procure money, and requested him to give the matter up. The evidence shewing a joint liability of the members of the committee, judgment was given against those who were sued; the non-joinder of the others not being pleaded in abatement.
6. Distinction between a binding engagement and an unaccepted proposal. How contract may be completed by the post. From what time bargain is closed by acceptance of offer.
There is of course a material difference between an unaccepted proposal and a binding engagement;-between negotiations preparatory to an agreement, and the agreement itself, Head v. Providence Ins. Co. 2 Cranch 127, 1 Curtis 459. Sometimes the meaning is that there shall be no binding engagement until a written contract is entered into and signed by the parties. Governor &c. v. Petch, 28 Eng. Law & Eq. 470. Sometimes a contract is completed by the post. It wont do to say that a defendant is not bound by his offer when accepted by the plaintiff till the answer is received. If that were so, then said Ellenborough, the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum. When a party makes an offer by letter, he is considered in law as making, during every instant of the time the letter is travelling, the same identical offer to the other party; and then the contract is completed by the acceptance of it by the latter. Adams &c. v. Lindsell &c. 1 Barn.
& Ald. 681.
This case (decided in 1818) had not been seen by the supreme court of Massachusetts when (in 1822) it decided the case of McCulloch v. Eagle Ins. Co. 1 Pick. 281, holding the offer not binding until the letter announcing its acceptance was received or until the regular time for its arrival by mail had elapsed. But Adams v. Lindsell was before the court when it decided Thayer v. Middlesex Mut. Fire Ins. Co. 10 Pick. 326.
Elsewhere in the United States Adams v. Lindsell has been followed. Mactier v. Frith, 6 Wend. 115, 16. The supreme court of the United States has recognized the rule of Adams v. Lindsell as a general principle of law governing the formation of all contracts entered into between parties, residing at a distance, by means of correspondence: the unqualified acceptance
by the one of the terms proposed by the other, transmitted by due course of mail, is regarded by the supreme court as closing the bargain from the time of the transmission of the acceptance. Tayloe v. Merchants Fire Ins. Co. 9 How. 402. A party may fail in his action when the acceptance has not been according to the terms of the bargain proposed. Eliason v. Henshaw, 4 Wheat. 228, 9 How. 402; Wontner v. Shairp, 4 Man. Gr. & Scott 441, 56 Eng. Com. Law Rep. 441; Duke v. Andrews, 2 W. H. & G. 296, 7.
In a case before Chancellor Walworth, wherein the answer was not intended as an acceptance of the offer, he considered that the offer was not afterwards binding on the party who made it. Frith v. Lawrence, 1 Paige 440. This decision was reversed in the court of errors. The proposition, says Marcy, J., may be considered as established that the acceptance of a written offer of a contract of sale consummates the bargain provided the offer is standing at the time of the acceptance. Mactier v. Frith, 6 Wend. 119. In this case, though the offer was not deemed accepted by the first answer, yet that offer was considered as continuing down to the time when it was accepted; and the bargain was closed by that acceptance. S. C. 122, 3.
The decision would no doubt have been otherwise had the offer been retracted before it was accepted. The idea being that until an acceptance the party is supposed to be continually repeating his offer,-the presumption of a repetition of the offer is rebutted by a declaration that the offer is retracted. Routledge v. Grant, 3 C. & P. 267, 14 Eng. Com. Law Rep.
The law will not imply a promise of any person against his own express declaration; it will not imply it when his declaration is repugnant to any implication of a promise. Whiting v. Sullivan, 7 Mass. 109; 13 Johns. 97.