#### George Odiorne *versus*Virgil Maxcy and Others.

Of the authority of one member of a copartnership to bind the whole ; and of or. agent to bind his principals.

[The confession of one member of a partnership, of any fact tending to bind the whole, in a matter of joint concern, is good evidence against the w hole. A company may maintain an action on a promissory note made payable to a person therein described as being their agent Where the business of a copartnership, as far as appeared, was intrusted to one.of the members to manage, transact, and superintend, and no written articles between them appeared to have been entered into, —held, that it might be presumed that the authority of such member, with respect to the affairs of the company, was unlimited, and that his doings and admissions would bind his copartners as well as himself; and that, where notes were made to and endorsed in the name of tne company and delivered to a third person as security for the debt of a person with whom *44the company had frequent dealings, and were recognized by such partner as binding on the company, who had recognized other similar notes not made for the use of the company, that had been paid, an action might be maintained by the holder against the company upon such notes.]

This was an action of assumpsit, founded on two promissory notes, which were made and endorsed in the following manner. The first note was the promise of one *Perley Rice*to pay to the *Neponset Cotton Factory Company*606 dollars 55 cents, in ninety days from the 10th of January, 1814, with grace. This note was endorsed thus: “ For value received, pay the contents of the within note to *George Odiorne.*For the *Neponset Cotton Factory Company,, Levi Maxcy,*agent.” The second note was the promise of the said *Rice*to pay to the order of *Levi Maxcy,*agent for the *Neponset Cotton Factory Company,*514 dollars 59 cents, in ninety days from the 15th of January, 1814, with grace; and it was endorsed in the same manner as the first.

The former verdict in the action having been set aside, *(vide ante,*vol. xiii. p. 178,) the cause was again tried before the *Chief-Justice*at the last November term in this county. It was then admitted that the defendants had associated to carry on a cotton factory, and that the said *Levi Maxcy*had been appointed their agent, to manage the affairs of the company. Three of the defendants live in the state of *Maryland,*and two of them in the town of *Attleborough,*in this state. The factory was in the town of *Walpole,*also in *Massachusetts.*

*The defendants objected that the second note did not contain a promise to them ; that the words which follow the name of *Levi M.*were only a description of him as promisee; and that his endorsement of said note, in manner aforesaid, did not bind the company. This objection was overruled, and the note was permitted to go to the jury.

The defendants then proved that the notes were given on a con tract made with the plaintiff by *Rice*for a quantity of nails and iron ; and that the said endorsements had been obtained by him, on his being requested to give other security than his own name. The plaintiff, having first inquired into the responsibility of the said company, agreed to take their endorsement as security on said notes.

The said nails and iron did not go directly to the use of the company ; but it appeared in evidence that, the concerns of the company being embarrassed, the said *Levi,*as their agent, before and after the making and endorsing of the notes in question, had frequently bought goods, which were exchanged for other goods, or sold to raise money for the use of the company ; and that said *45*Rice*had assisted him in such negotiations ; and that the said Levi, as agent of said company, had, by like negotiations with *Rice,*assisted him to raise money for and on account of him, the said *Rtce.*

It further appeared in evidence that *Rice*kept a store, and called himself a commission merchant, for the sale of *American*manufactured goods; and that some of the goods manufactured by the defendants were deposited for sale in his store; and that the said *Levi,*as agent, and the said *Rice,*had joined in the purchase of divers quantities of cotton, and of some groceries, and had given notes for such purchases, which notes had been paid.

It also appeared that, early in the month of February, 1814, *Virgil Maxcy,*one of the defendants, was in *Boston*to examine into the affairs of the company, which were found to be much embarrassed, and the factory was soon afterwards broken up About the same time, the said *Rice** became insolvent. There was evidence, also, that the said *Virgil*was present when one of the notes declared on was made or negotiated; and that he did not object to the same, but said it was correct. The said *Virgil*was the only partner who appeared to take any active part in the management, direction, or superintendence, of the company’s concerns. He was brother to the said *Levi,*and was proprietor of the major part of the stock of the company.

There was no evidence that the said *Virgil*had any authority to act in the affairs relating to the factory beyond that which arose from his being one of the company. But it was proved that he had recognized, as obligatory on the company, several notes which were either signed or endorsed by said *Levi,*and which were given for articles of merchandise which did not go to the use of the company; and which notes had been paid.

There was produced in evidence an original agreement between said *Rice*and said *Levi Maxcy,*which was proved to be in the hand-writing of the said *Virgil,*and in which the notes in this case, with sundry other notes, are mentioned ; and it was proved that all the said other notes had been voluntarily paid by the defendants, or judgment had been recovered on them. There was also other evidence, tending to prove that the said *Virgil Maxcy*knew that the notes in question in this action were received on the credit of the company. The defendants objected to this paper, as not admissible evidence, because it was not the act of the defendants, nor binding on them, if it could be considered as evidence to any purpose against the said *Virgil.*But the objection was overruled, and the said agreement was permitted to go to the jury.

It did not appear that either of the members of the company, except the said *Virgil,*were conusant of the aforesaid transactions; *46there having been no evidence offered by either party, tending to inquire into that fact.

The jury were instructed that, if the evidence in the case was sufficient to satisfy them that the said *Virgil** *Maxcy*knew that these notes were given in the manner proved by the plaintiff, and that he had paid other notes given under the like circumstances; or that the nails and iron, for which said notes were given, either directly or indirectly went to the benefit of said company ; and especially if he had recognized them in the agreement before mentioned, or otherwise, as being contracts made by the agent of the company — the defendant swere bound by these contracts, without proof, other than had been offered, that the other members of the company had specially authorized and empowered the said *Virgil*to assent to these contracts.

The jury were further instructed that, as it did not appear that any articles of copartnership were entered into between the said *Virgil*and his associates, and as the said *Virgil*was admitted to be the managing and active partner, the other associates not appearing to transact any of the business of the company, it might be presumed that his authority was unlimited with respect to the affairs of the company, and that therefore his doings and admissions would bind all the associates equally with him.

If the Court should be of opinion that the said notes, or either of them, are not to be considered as the contracts of the defendants, or that the jury were erroneously charged in matter of law, the verdict which was returned for the plaintiff was to be set aside, and a new trial granted; otherwise, judgment was to be rendered upon the verdict.

*W. Sullivan*and *Minot*for the defendants.

*B. Whitman*for the plaintiff.

Parker, C. J.,

delivered the opinion of the Court. The facts reported in this case are substantially the same as those which appeared on the former trial. The verdict returned on that trial was set aside, because the judge instructed the jury that, as *Levi Maxcy*was the agent of those who transacted business under the name of the *Neponset Cotton Factory Company,*they might presume his authority extended to the act by which the company are attempted to be charged in the present action, (a) * At the last trial the jury were differently instructed. They were told that, if the evidence satisfied them that *Virgil Maxcy,*one of the defendants and the principal of the com-*47pony, knew that the notes sued in this action were given and endorsed in the manner they purport, and that he had paid other notes given under similar circumstances; or that the consideration’ of the notes went, directly or indirectly, to the use of the company and especially if he had recognized these notes as binding on the company, — they should find for the plaintiffs. And they were further instructed, that the doings and admissions of *Virgil Maxcy,*under the circumstances of this case, would bind his associates, the other defendants.

The motion for a new tidal has been supported principally by objections to the latter part of this instruction. It is said that, admitting the company not to have been originally bound by the signature of *Levi Maxcy,*the assent or ratification of such a contrae; afterwards by one of the company, having no especial authority therefor, would not conclude others of the company who did not assent thereto.

The proposition may be true that, if one assume to be the agent of several acting together in copartnership, and one of the parties afterwards ratify the act, this shall not be equal to a precedent authority from all ; and yet the instruction to the jury may have been right. The real question before the jury was, whether *Maxcy,*the agent, had authority from the company to pledge them in these notes. The acts and sayings of *Virgil Maxcy*were relied upon, to prove that he had this authority; nor that the act of the agent in making the notes, if it was at first without authority, was afterwards ratified.

Admitting that the agency gave no authority to sign notes for the company, except when the consideration went immediately to their use, yet a further authority might have been given, and the confession of the members of the company would be good evidence to prove such authority, *(a)**** Now, the confession of one member of the copartnership, of any fact tending to bind the whole, in a matter of joint concern, is unquestionably good evidence against the whole. (b)

The facts, that *Virgil Maxcy*knew that one of the notes was made by *Levi,*as agent of the company; that *Virgil*drew up the agreement between *Levi*and *Rice,*in which these notes were specially described and provided for; and that other notes, given by *48*Levi*under similar circumstances, were paid by *Virgil,*acting for the whole, — were proper subjects of consideration for the jury, in inquiring whether *Levi*acted under authority from the company ; and were in their nature, if uncontradicted, conclusive evidence of such authority. The instruction to the jury was therefore right, and the verdict must stand. With respect to the objection, that one of the notes was payable to *Levi Maxcy,*agent of the company, the evidence above considered shows an adoption of the note by the company, and there is no doubt that they might have maintained an action upon it.

*Judgment on the verdict.*

(a)

A) *Salem. Bank*vs. *Gloucester*Bank, 17 *Mass. Rep.*1.— *Wyman*vs. *Hallowell Augusta. Bank,*14 *Mass. Rep.*58.— *Foster*vs. *Essex*Bank, 17 *Mass. Rep.*179.— *White*vs. *Westport Cotton Manuf. Co.*1 *Pick.*215.

(a)

*Hodenpyl*vs. *Vingerhoed, Chitty, Bills,*381, n. 7th ed.— *Gray*vs. *Palmer,*1 *Esp.*135.— *Wood*vs. *Braddick,*1 *Taunt.*104. — *Prichard*vs. *Draper, Russ, & Mylne,*199. —10 *Moore,*393. — *Cheap*vs. *Cramond,*4 *Barn. & Ald.*663. — *Lacey*vs. *M'Neil,*4 *D.*& *R. 7.*

(b)

*Collyer on Part.*233. — *Coif*vs. *Robinson,*2 *Wash. C. C. R.*388. — *Van Reimsdick*vs. *Kane & Al.*1 *Gallis,*630. — *Gardner*vs. *Fowsey,*3 *Lit.*425. — *Fiske*vs. *Cop land,*1 *Ten. R.*383. — *Parker*vs. *Merrill,*6 *Greerl.*41.