Year: 1873

Controversy. .----rr .rr-tr.~r


Rdwin Whitmore. plaintiff in error,
VS.. Opinion
Pooley, Barnum 4 Co.


Pooley, Barnum 4 Co. sued Edwin
Whitmore & Co. on two promisory notes
of $lS5 90 each, made by w. A. Whit.
more, payable at six and nine months,
respectively, to the order Of "Whitmore
Brothers" and indorsed in that name.
Whitmore Bros., q firm composed OF Ed
win Whitmore and the said w. A., were
partners in publishing the PUBLIC LED
GER newspaper in the city Of Memphis,
and also conducted 4 general job print
ing office in that city The notes in suit
were, however, drawn and indorsed by
W. A Whitmore in discharge of pri-
vate debt that he owed to one Cannon
Edwin Whtmore is the surviving part
ner of the firm, and puts in q special
plea of non est factum, and insists that
the firm is not bound TO pay, on the
ground that it is not partnership debt
Defendants in error reply that they are
bona fide purchasers for valuo of the
notes in the due course Of trade, and
therefore are entitled to recover, not
withstanding the wrong or fraud of w.
A. Whitmore ia using the partnership
name in personal transaction. The
court below instructed the jury that as
general rule enc partner is not liable
for the accounts of another partner not
within the scope of the partnership busi-
ness; that if one partner sign promi-
sorry note or other negotiable paper in
the firm name, without the knowledge or
consent of the other partner and for a
matter net within the scope of the part
nership business, the other partner will
not be liable unless he ratify the act, or
unless the paper gets into the hands of
some purchaser before due, or who had
no knowledge or notice of the considera-
tion between the original parties and who
paidyaluable consideration for the paper;
that such person would be an innocent
holder for value and without notice.
The above instructions are not accurate
without important qualifications, and
were certainly calculated, as we think, to
mislead the jury in view OF the facts of
this case.


Every member of an ordinary partner.
ship is its general agent for the transac-
ton of its business in the ordinary wGy,
and the firm is held responsible for
whatever is done by any Of the partners
when acting for the firm within the
limits of the authority conferred by the
nature of the business it carries on.
Every person is entitled to as
sumo that each partner is empowered to
do for the firm whatever is necessary for
the transaction of itS business in the way
in which that business is ordinarily car
ried on by other people. But no person
is entitled to assume that any partner
has a more extensive authority than that
above described.


B twill be observed that what is neces-
sary to carry on the partnership bust
ness in the ordinary way is made the
test of authority when no actual au-
therity or ratification can be proved.
This ia comfortable to the most recent
and carefully considered decisions; but
by adopting it the liability of firm for
tie acts of its co-psrtners is not so ex-
tensiye az pon-lawyers sometimes
imagine.


The question whether q gwen act can
or cannot be said to be necessary to the
transaction of the business in the way IN
which it is usually carried on must eVl-
IDENTIFY be determined by the nature OF
the business and by the practice Of per
sons engaged in it. Evidence en- both
of these points is therefore necessarily
admissable; and, as readily may be con-
ceived, an act which is necessary for the
prosecution Of one kind of business may
be wholly unnecessary for the carrying
on of another in the ordinary way.
Consequently no answer Of any value
can be given TO the abstract question,
Can one partner bind his firm by such
and such an act2 Unless having re-
gard TO what is usual in business, it can
be predicated Of the act in question either
that h Is one without which no business
can be carried on, or that it is one which
Is not necessary for carrying on any
business whatever. There are obviously
very few acts Of which such an assertion
can be truly made, The great majority
of acts which give rlss 10 doubt are those
which are Necessary in one business but
not n another. Take for example ne
gotiable instruments; il may be neces-
sary for one member Of firm Of bankers
10 draW,ac or indorse bill Of ex-
change on behalf Of the firm, and TO re-
mira that each member should put his
5ane 10 Il would be Ridiculous; bot It By
no means follows, nor is II in fact true,
that there is any necessity Tor one Of
several solicitors 10 possess q similar
pover. for il Is no part Of the ordinary
business OF 4 solicitor 70 draw, accept %
indorse bills Of exchange. The question.
therefore. Car one partner band TIE
frm hT accepting bills 10 bis uanef
sdnits Of no general answer, the nature
oil TIE business and the practice Of those