ture, and that a parol authority to the agent to fill up the blanks was sufficient in law, and parol evidence was admissible to prove such parol authority.

In the case of Merritt against Clason, [12 John. R. p. 102.,] it was conceded by the counsel, and assumed by the court, that the authorization of the agent under this section of the act, need not be in writing. In that case, Townsend the broker, who was held to be the agent of both parties, acted under a parol authority solely, and the sufficiency of his authority to bind the parties by his memorandum in writing, of the agreemeat was expressly admitted. In the case of Coles v. Trecothick, [9 Ves. p. 249.,] and other equity cases, a written authorization of the agent to write out the contract for the principal, was held unnecessary, and this rule was recognized and sanctioned by the English Court of Common Pleas, in the case of Emmerson v. Heelis, [2Taunt. p. 46.,] and by Chancellor Kent in the Court of Chancery of this state, in the case of McComb v. Dwight, [4 John. Ch. Rep. p. 659.] In commenting on the case from Taunton, the Chancellor approves of the conclusion of the Court of Common Pleas, that the auctioneer is an agent of the purchaser, and a contract signed by such agent is binding, and that an agent for the buyer need not be authorized in writing. The same rule of construction must apply to the authority of an agent by whom the principal contracts, and becomes answerable for the debt of another, which comes within the same section of the act.

These precedents exhibit a clear, strong and uniform current of judicial opinion for more than a century, in the English Court; and of those of this state, since its organization as such, in favour of the sufficiency of the parol authority of the agent to sign for his principal; and we cannot against such an unbroken series of decisions in support of it hold it invalid.

The remaining objection to the validity of the authorization in the present case, because it is given to the maker of the note, whose debt was to be guaranteed, is clearly untenable. The interest of the party in the endorsement does not disqualify him for the agency, if the principal is willing to trust him with the powers

1828.

Phyfe

v.

Trout.

it confers. It was the intention and design of the defendant to Dec. Term, lend the maker of the note the use of his name, as endorser of his paper, and it was but the further proof of his confidence in him, to Turnbull and confer on him the authority to make the endorsement. The agent at the same time he bound him as endorser, must bind himself as maker of the note, and thereby oblige himself to reimburse to the principal the money he might be compelled to pay for him as endorser. And the principal if he confided in the integrity and the solvency of the person he intended to befriend, might be willing to commit to him the charge of showing the extent of the liability. The interest of the maker of the note in the endorsment, and the temptation he would be under to abuse the power, if allowed to prove it, would be a strong objection, and perhaps conclusive against his competency as a witness to establish his authority to endorse. But in this case, his authority is proved by other testimony, and he is not called to establish it by his own oath. I see no solid reason against his capacity to act as agent under either a written or a parol authority. His interest in the endorsement cannot disable him, for the debt created by the indorsement continues against him as maker; and his authority is conferred upon him by the party himself, who alone is to suffer by the act. The cases cited by the counsel to this point have no application. The case of Wright v. Wardle, [2 Camp. p. 200.,] was an action for the price of furniture supplied the witness, at the request, and on the credit of the defendant. The witness to whom the goods were furnished, and who was then the owner of them, was called to prove that the credit was given to the defendant, and it was objected, that she was not a competent witness without a release, as the goods were furnished to her, and she was prima facie liable for them, and hada direct interest to fix the liability on another. She was on that ground rejected.

Another point was made by the plaintiff on the argument which it may be proper to notice. It was contended that the subsequent assent of the defendant to the endorsement, and his promise to pay the note was a waiver of any exception that otherwise might have been taken to the sufficiency of the anthority to endorse; and the cases from 2 Camp. p. 450., and 5 Esp. p. 180., were cited

1828.

Sewall

v.

Rodewald.

Dec. Term, in support of the proposition. I incline to the opinion that this case comes within the principles of those cited by the counsel, and that the defendant ought upon principle as well as precedent, to be precluded from the benefit of a defence which appears from his own admission, not to be very meritorious, and which he so clearly appears to have waived. But my opinion being in favour of the plaintiffs upon the other points of the cause, it will not be necessary to enter more fully into the consideration of this; therefore, the motion for a new trial must be denied.

Motion denied.

[W. H. Bell, Att'y for plff. E. Anthon, Att'y for def't.

NOTE. Vide Shaw v. Nudd, 8 Pick. Rep. 9.

HENRY D. SEWALL versus HENRY RODEWALD.

Although the general rule is, that demands growing out of partnership dealings, cannot be set off against individual demands on one of the partners, yet a special agreement for that purpose may of course be made which will be binding on the parties, and entitle the defendant to the set off claimed.

THIS was an action of indebitatus assumpsit, brought by the plaintiff as the surviving partner of the firm of H. D. & C. В. Sewall, to recover a balance of account, due that firm from the defendant, or the amount of certain advances made by his order. The declaration contained the common Counts, for money paid, money lent and advanced, for goods sold, &c., and a count upon an insimul computassent. Plea the general issue.

The cause was tried before Mr. Justice OAKLEY, on the 9th day of October, 1828. At the trial it appeared, that the plaintiffs were merchants, residing in New-York, that the defendant was a merchant in Baltimore, and that he had a brother residing in Bremen, (Frederick Rodewald,) who was a commission merchant there, and with whom, both the plaintiffs and the defendant had extensive connexions of business. There Dec. Term,

1828.

Sewall

v.

was no general partnership existing between these parties, but several shipments had been made by Frederick Rodewald from Bremen on the joint account of himself, his brother and the Rodewald. plaintiffs; and in the course of this business, the plaintiffs always gave credit to the defendant, for the net proceeds of the shipments made from Bremen on the joint account of all the parties. Frederick Rodewald was the owner of a ship called the Louise, and during the summer of the year 1826, he shipped a cargo, consisting of sheep, rags, glass &c., on joint account, which was received by the plaintiffs at New-York: and one John C. Dunte, an agent of Frederick Rodewald, applied to the plaintiffs to make a return shipment to him by that vessel. This they did, and charged the amount of their advance for that purpose to the defendant.

On the 26th of august 1826, the plaintiffs wrote to the defendant, and enclosed a copy of their account exhibiting a balance of $5,497. 79 due to them; on the 30th of the same month they drew upon him for $3000, and their bill was duly accepted. The defendant in reply, and in his letter of advice concerning the bill, desired the plaintiffs to send him "a statement of the account of the ship Louise, so as to enable him to make the necessary entries." On the 6th and 8th of September following the plaintiffs drew, two bills on the defendant, one for $1240. and the other for $12 57, 99, the two together amounting to the exact balance of their

account.

These bills the defendant refused to accept, but stated that he had written them on the 28th of August 1826, "in words which could not be misunderstood" that he "would make provision to pay" the "plaintiffs the whole amount of their purchases for the Louise at maturity in New-York." He also added, that he had the more right to claim indulgence from the fact; that the plaintiffs had in their hands," " the goods per Louise, the proceeds of the sheep sold and those on hand as an additional security." As to the drafts, he promised, "that due payment should be made" to the plaintiffs " for them at maturity."

Dec. Term, 1828.

Sewall

v.

In reply to this letter, the plaintiffs stated, that "the balance due on sheep, &c. by the Louise, after deducting expenses, would be but trifling;" but that as to the defendant's claim, "be it what Rodewald. it might," they "were ready to make it good." It appeared, during the progress of the trial, that on the 7th day of July, 1826, the plaintiffs and Dunte had settled their accounts with Frederick Rodewald by an agreement in writing, and that a balance of 4,499, 33-100 was admitted by the agreement to be due to the latter from the former. Dunte testified that he was induced to make this settlement in expectation of receiving the balance, and for fear that the plaintiffs would fail. He also testified, that some time before this, the plaintiffs had insisted that they were not interested jointly with the defendant and his brother, in the sheep, &c. by the Louise, and that he (the witness) had discharged them from all liability on account of that adventure.

Upon this state of facts, the plaintiffs brought the present action. The defendant did not deny his liability to pay the whole amount of the plaintiff's advances to purchase the return cargo of the Louise, but claimed that he was to be credited with the nett proceeds of the shipment of sheep, &c. which Frederick Rodewald had made by that vessel for the joint account of all the parties.

The plaintiffs resisted this claim, upon the ground that their demand upon the defendant was for his own individual debt, founded upon his promise to pay the amount of their advances to purchase the return cargo of the Louise: that the adventure by that vessel was upon joint account, and being a partnership concern, could not be set off against the defendant's individual debt. A number of letters, accounts, and statements were spread before the jury by the plaintiff and by the defendant, and several witnesses were called to substantiate the positions assumed by the respective parties. But the facts stated are supposed to be sufficient to a correct understanding of the points of law.

The Judge charged the jury,

I. That they could not set off the proceeds of the adventure by the Louise, against the claim of the plaintiffs, unless they found