Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1873-05-19

ut Is clearly settled that any member
OF an ordinary trading partnership can
bind the firm by drawing, accepting or
indorsing bills OF exchange, or by making
and indorsinE promisory notes in Us
name. But with respect to partner
ships which are NOT trading partnerships
the question whether one partner has
any implied authority to bind his CO.
partners by putting the name OF the firm
TO a negotiable instrument depends upon
whether the business Of tho partnership
is such that dealings in negotiable in
struments are necessary for It's transac'
ton, or are usual in partnerships Of the
same description. In the absence OF
evidence showing necessity or usage the
power has been denied one Of several
mining adVenturers, quarry workers,
farmers, solictros, etc.-Ibidem, 2l3, l4'
The foregoing principles, as we think,
have been fully recognized BY this court
in Crosthwait vs. Rose, list Hump, 23l.
when the distinction between partners
in trade aud partners in occupation or
employment is taken, and the power Of
the former class to bind the firm by
drawing or indorsing notes and bills is
sustained while it is denied TO the latter
class. 1t is there held that one partner
in the practice Of physic could not bind
the firm by drawing bill or making q
note on which TO raise money, because
il ives not within the scope OF their part
nership, and it was distinctly holden that
the power to raise money was not one
of the implied powers resulting from
such an association.
BY recurring to the instructions given
by the court below in this case it will be
seen that this important distinction be-
tween strictly commercial or trading
partnership and partnerships in occupa-
patton is entirely ignored; and wo think
that it was the duty Of the court TO point
out the distinction prima faci@.
II cannot be said that one partner in
a printing Office would have the implied
power to bind the firm by drawing or
indorsing note.
In this case, to be sure, there was
some evidence Of the usage of this firm
to deal in commercial paper; but there
was also evidence tending to the con-
trary conclusion.
2. The consequence OF this distinc-
ton between trading and non-trading
partnerships is very important. In
reference to the main defence to be re-
lied upon in this case: If a partner in a
banking firm, for instance, should indorse
bill or note for his private debt, and
1t should get into the hands Of a bona
fde holder without notice, his firm would
be bound by it. The indorsing or
making such paper being the usual
mode Of conducting that business, the
public have right to suppose that each
partner is empowered to accept or in
dorse for the firm, and are not bound to
inquire whether in a given instance the
act was done with the assent of his CO.
partners. But not so with partnership
N occupation merely whose business
does not ordinarily require dealing in
commercial paper.
One who becomes a member of such a
firm does not confer implied power to
his co-partners to bind him by dealing
in bills or notes. He is not clothed
with apparent powers SO to bind his firm,
and no person dealing with the firm has
a right to suppose that the powers of one
member are more extensive than is i'm
piled by the ordinary mode of conduct
ing such business. II two persons are
associated in the practice of law and one
of them, without or against the consent
Of the ether, should indorse a note or
bill for his private purpose, no one buy
ing such bill could succeed on the plea
that he was bona fde holder without no.
tice, for the reason that by forming such
an association the several partners do
not hold each other out to the world as
empowered to use their names as makers
or indorsers of negotiable paper.
3. The rules in regard to notice to a
purchaser are very accurately laid down
in our own cases, dijested in Heiskell,
page -, and contain much more ac-
curate statement of the law upon the
subject than is contained in this charge, |
and one much more applicable to the
facts of the case. Ono conclusion is that
the charge of the court in reference to
this case, if it does not amount to posi-
tive misstatement of the law, was calcu- |
lated to mislead the jury, and that the
appellant is entitled to q new trial, al |
though he failed to ask further instruc
tions to the jury. On hearing this cause
at former term the court decided to |
grant new trial, and it is now before us
on application TO reconsider the conclu-
sion at which the court then arrived. |
On a reconsideration of the case we ad- |
here to our former opinion and reverse
the Judgment of the municipal court |
and remand the case for new trial in |
accordance with the principles herein |
announced. BARTON, Judge.
The State Tennessee:
/, John 81. Freeman, clerk of the Su-
preme Court of said State, for the Yves
tern Division thereof at jackson, do
hereby certify that the foregoing is a
true, perfect and complete copy of the
opinion pronounced by said court at its
April Term, 1873, in the case Of Edwin
Whitmore, plaintiff in error, against
Pooley, Barnum 4 Co.. as appears Of
record now on file in my office.
In testimony whereof have hereunto
set my hand and affixed the
r., seal Of the court, at Office, in
the city OF jackson, on this,
IL. 81 the sth day Of May, AID. 1878,
- and the Independence of the
United States the nineiy-sev-
cath year.