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A note signed by one partner only “ for himself and partners,” will satisfy the terms of an act of Parliament, which requires a writing to be signed “with his or their name or names," and will therefore be a valid note, and binding on the
A joint and several promissory note will not be binding sererally on such partners as do not sign it, where it is not subscribed in the name of the firm, but only by the individuals of the firm (6).
If a partner give his copartner his separate note as a security for his moiety of a debt due from the partnership, and the latter, instead of paying the debt, indorse the note over to the creditor, the creditor may sue the former partner on the note without shewing for what consideration it was indorsed. In the case of Heywood v. Watson (c), Morrall and Watson were partners. They obtained permission to overdraw their bankers, and Morrall, as a security for the advances, gave his separate promissory note for £2000. The defendant, Watson, then gave Morrall a promissory note for £1000, to meet Worrall's collateral security given in the note for £2000; and to secure to Morrall the repayment of his, Watson's, moiety of the money advanced. Morrall never repaid any of the advances, nor answered the note for £2000, but indorsed Watson's note to the bankers, and for anything that appeared at the trial, without consideration. In an action on the note brought by the bankers against Watson, the Court of Common Pleas held clearly, that the plaintiffs were entitled to recover. It did not appear, they said, that the plaintiff's knew of the circumstances under which the note was originally given, and even if they did, it was by no means clear that these circumstances would have furnished a defence to the action. It might have been different if Morrall had deposited the note with the bankers.
IV. The debt of one of several partners, incurred in respect of the copartnership, but before the completion of the partner
defendant's signature to the note for
is binding on the firm. Doty v. Bates, 11 Johns. 544, (American).
(a) Meux v. Humphrey, 8 T. R. 267.
(6) Perring v. Honc, 4 Bing. 28. (c) 4 Bing. 496.
ship contract, is a sufficient consideration for a bill of exchange given in discharge of such debt by any of the other partners, after the completion of such contract. A., B., and C. were partners in a maritime adventure. A. purchased on his own credit, for the adventure, a quantity of copper of the plaintiff S. A. having become bankrupt, B. and C., considering themselves as partners in the transaction, accepted bills for the amount of the copper. It was held, that although, from the terms of the partnership agreement, the contract of partnership was not complete at the time of the purchase of the copper, and that the purchase having been made by A., S. could not sue B. and C. as his copartners in an action for goods sold and delivered, yet he could sue B. and C. in an action on the bills. There is no doubt, said Lord Kenyon, that if this had been an action on the bills (a), the plaintiff might have recovered: there was a consideration for them; and being in writing, the Statute of Frauds would have been satisfied, though they were promises to pay the debt of another person (b).
of Liabilities under Guaranties given in the Name of the Firm.
IN Hope v. Cust (c), Lord Mansfield said—“There is no doubt but that the act of every single partner in a transaction relating to the partnership, binds all the others. If one give a letter of credit or guarantie in the name of all the partners, it binds all.” On the other hand, Lord Ellenborough laid it down, that it is not incidental to the general power of a partner to bind his copartners by a guarantie (d).
In the case before Lord Ellenborough, the guarantie was signed by one of two partners, in respect of a matter in which
(a) The action was for goods sold (c) 1 East, 48. Upon this suband delivered, see post, chap. 3, ject, see Theobald on Guaranties, sect. 1.
29. (b) Saville v. Robertson, 4 T. R. (d) 3 Camp. 478.
it appears that the partnership had no concern. His Lordship therefore held, that in order to support an action on such guarantie, it was necessary to give some evidence, beyond the relationship of partners subsisting between them, that the one who signed had authority to bind the other by such an instrument; though for this purpose it would be sufficient to prove a parol acknowledgment from the other partner subsequently to the giving of the guarantie, or to shew a previous course of dealing, in which similar guaranties had been given in the partnership firm, with the privity of both partners (a).
But in cases of this nature the question to be considered is, whether the guarantie can be deemed an assurance made by one partner with reference to business transacted by both (6); for if it can, it will be binding on the firm, whether or not it was assented to by both. Therefore, where A, employed B. and C., his navy agents, to lay out money in the purchase of an annuity for him, of which, and of the fact of the money being laid out, both were cognizant; but B., unknown to C., guaranteed the punctual payment of the annuity—it was held, that C. was bound by the engagement of B., both partners being connected with the general transaction (c). And the Court observed, that although the negotiation of annuities was out of the regular course of the partnership business, yet under the circumstances it was within the scope of B.'s authority.
The case of Ex parte Gardom (d) seems to have been decided on somewhat similar principles. Thomas Tapp applied to Gardom to sell him some cotton twist; Gardom desired a reference. Goodwin, of the house of Hargreave & Goodwin, told Gardom that their house would guarantie what twist Gardom might sell to Tapp up to the 1st January, 1808, as Tapp was manufacturing goods for them: accordingly, the following engagement was drawn up in writing--“We agree and engage to guarantee for what twist Thomas Tapp may purchase from you from the 28th ult. to 1st January, 1808.—Hargreave & Goodwin.” This paper was signed by Goodwin. The guarantie was afterwards renewed in the same manner, and in similar terms.
(a) Duncan v. Lowndes, 3 Camp. 478. But see Payne v. Ives, 3 Dowl. & Ryl. 664.
(6) See the next section.
(c) Sandilands v. Marsh, 2 Barn. & Ald. 679.
(d) 15 Ves. 286; 2 Hov. Supp. 406.
Sales took place in pursuance of both guaranties. Tapp afterwards became a bankrupt; as also did Hargreave and Goodwin. Gardom received a dividend under the commission against Tapp, and petitioned to prove the residue of his demand against Tapp under the commission against Hargreave & Goodwin. The proof was rejected; and one ground alleged for the rejection was, that the signature of Goodwin could not bind the partnership At the hearing, the counsel for the assignees gave up this objection; and per Lord Eldon-" The objection that the partnership was not bound by the signature of one partner is properly given up."
In a later case (a), Lord Eldon, adverting to the subject of guarantie by one partner, observed, that he quite agreed that a partner had no right to guarantee a separate transaction, at the expense of the other partners, where they were not concerned ; but he was at the same time bound by the doctrine of Lord Mansfield to say, that a partner might give a guarantie for his partners in a matter relating to the partnership.
If the firm adopt the guarantie of one of the partners, they will be bound by such adoption, although the guarantie may have been given out of the regular line of their business (6); and it will be for a jury to consider whether or not the firm have adopted the act of their copartner (c). “If,” said Lord Eldon, “they accede to the act of the partner giving the guarantie, it is not the mere circumstance of his having given it, but their having acceded to what he proposed, which constitutes the dealing between them and the parties secured. So, if partners are informed of such a mcasure having been taken by a person who is a partner, though perhaps not in that particular transaction, yet, inasmuch as it may not easily be known to those who deal with such partner, in what dealings the other partners are, and in what they are not interested, and they do not think proper in answer to state, whether they authorized such partner so to act or not, it is not too much to take it for granted, that they accede to the guarantie which their partner has proposed (d).”
But they may give in evidence a disclaimer of the guarantie (e).
(a) Ex parte Nolte, 2 Glyn & Jam. 306.
(6) Crawford v. Sterling, 4 Esp. 207.
(c) Payne v. Ices, 3 Dowl. & Ryl. 664.
(d) Ex parte Nolte, supra.
Of Liabilities under Acts and Assurances in general, in the Name
of the Firm.
In the foregoing sections we have confined ourselves to the examination of particular contracts, as loans, purchases, sales, and pledges effected, bills and notes negotiated, and guaranties given by individual partners in the name of the firm. But generally, in the language of Lord Tenterden—“The act and assurance of one partner, made with reference to business transacted by the firm, will bind all the partners (a).” Hence, the acknowledgment, promise, or undertaking of one partner, with reference to the contracts of the partnership, is the acknowledgment, promise, or undertaking of all (6).
I. In Vicary's case (c), which was an action of covenant against two, it was held that the affidavit of one of them might be given in evidence as the acknowledgment of both. So, in an action against two as the drawers of a bill, the acknowledgment by one that the bill was drawn by the partnership binds both (d). Generally, also, an admission made by one of two partners relative to a partnership transaction, whether made before or after the dissolution of the partnership, is competent, though not conclusive evidence, to charge the other partner (e). And where two houses are partners in consignments, the acknowledgment by one house, of the receipt and sale of goods, is binding on both houses ($).
II. It has been decided that the promise by one partner to pay a debt as a partnership debt, is a promise by the firm. G., a creditor of M'Neil & Co., was a debtor of Lacy & Wilson, who sued and arrested him. G. afterwards executed a deed of as
(d) 2 Barn. & Ald. 679.
(6) Wood v. Braddick, 1 Taunt. 104.
(c) Bac. Abr. Evidence, 623.
(d) Hodenpyl v. Vingerhoed, Chit. Bills, 381, n., 7th ed.; Gray v.
Palmer, 1 Esp. 135.
(e) Wood v. Braddick, supra ; Pritchard v. Draper, Russ. & Mylne, 199. See 10 Moore, 393.
(f) Cheap v. Cramond, 4 Barn. & Ald. 603.