Drumright and others vs. Philpot. dismiss this branch of the case-and proceed to inquire, is the the subsequent implied, verbal ratification of Drumright, the partnership, quoad this transaction, at least, being established, sufficient to establish this sealed warranty as the deed of the firm, and binding upon it as such? I would remark, that the whole reasoning on which this doctrine depends, as well as the authorities on which it is founded, are most ably and elaborately reviewed in the cases of Cady vs. Shepherd, (11 Pick. R. 405, 406,) and Grover vs. Seton, (1 Hall, 262.) In the latter case, especially, all the English as well as the American authorities, were examined at great length, by Chief Justice Jones; and it is difficult to withhold one's assent to the conclusion at which he arrives. After exposing the utter fallacy of the reason upon which the old rule rests, that one partner cannot bind his co-partner by deedwhich principle he does not attempt to disturb-he asks, "can it be that this stern rule of the Common Law, which has its appropriate sphere of action, and a most salutary operation, on these relations of society, where men, not otherwise connected, are the owners of undivided property, is to be applied, in all its force, and to govern with unbending severity in the concerns of co-partners, whose intimate connection and mutual interest require such large power and ample confidence in the integrity and prudence of each other, to give to their operations efficiency, vigor and success?" He continues-"The pressure of these considerations has induced a relaxation of the Common Law rule, to adapt it to the exigencies of commercial co-partnerships and other associations of individuals, operating with joint funds for the common benefit. The rule, itself, remains, but the restrictions it imposes are qualified by the application of other principles. The general authority of a partner, for example, derived from his relation to his co-partners, does not empower him to seal an instrument for them, so as to make it binding upon them, without their assent and against their will. An absent partner is not bound by a deed executed for him by his co-partner, without his previous authority or permission, or his subsequent Drumright and others vs. Philpot. adoption. But the previous authority or permission of one partner to another, to seal for him, or his subsequent adoption of the seal as his own, will impart efficacy to the instrument, as his deed; and that previous authority or subsequent adoption may be by parol". It is difficult to add any thing to this able opinion. The whole of it is worthy of the most attentive perusal. I would merely suggest, that there is no general principle better settled, both in England and in this country, than that a corporation cannot bind itself, except under its corporate seal. Indeed, this constitutes one of the very elements of the definition of a corporation. And yet, it is now universally admitted, that where the acts done are of daily necessity to the corporation, or must be done immediately—such as issuing, accepting and indorsing bills of exchange, &c. this rule is dispensed with. Would not partnerships fail of accomplishing the end of their formation, if one partner could not bind the firm by acts and contracts, beneficial to the joint concern, and within the scope of the partnership trade and business, without a prior authority or subsequent ratification, under seal, to do so? To deny to each the use of the partnership seal, for instruments requiring it, and which the exigencies of the joint concern required, would, at this day, seriously cripple and embarrass the success of mercantile business; and the tendency of Judicial decisions, is to hold that the previous authority or subsequent adoption in such cases, may be by parol. Judge Story, in his Treatise on Partnerships, states that the American Courts are strongly inclined to repudiate the stern rule of the Common Law, and to hold it inapplicable to the concerns of co-partners, whose intimate connection and mutual interest require such large power and ample confidence in the integrity of each other. And to maintain that it is sufficient, in all cases, where an express or an implied authority or confirmation could be justly established, not under seal, whether it be verbal, or in writing, or circumstantial. (Page 178, §121, citing 3 Kent's Com. Lec. 63, pp. 47, 48, 4th Edition. See, also, Rawle's Smith on Contracts, 255, note.) Drumright and others vs. Philpot. [3.] But concede that this position is untenable. It cannot be disputed that an agency, whether general or special, and whether conferred in one way or another, unless the contrary manifestly appears, is always construed to include all the usual and necessary means of executing it with effect. (2 H. Bl. 618. 5 Bingham, 412. 10 Wend. 218. 6 S. & R. 146.) And it has been held, that an agent, employed to sell a slave, may warrant him to be sound, unless inhibited by the terms of the authority under which he acted. Gaines vs. McKinley, (1 Ala. Rep. 446.) Gough, then, was clothed, by implication, with power to warrant the soundness of Beckey and her two children. Strike off the seal as being unauthorized, still, the warranty is good. If the act of one partner be a good and valid act in itself, it will not be rendered the less so, if done by a specialty, provided the seal do not vary the liability. Dukard vs. Case (5 Watts 22). Henessy vs. Western Bank (6 Watts & Serg. 301). Tapley vs. Butterfield (1 Metcalf 515). These cases, and many others, upon the subject of the power of a partner to bind the firm, will be found classified in the note to Livingston vs. Rosevelt (1 Amer. Lead. Cases, 460). "Where a man", said Lord Coke, "doeth that which he is authorized to do and more, there it is good for that which is warranted, and void for the rest." (Co. Litt. 258, a.) "Where there is a complete execution of the authority", says Judge Story, "and something ex abundanti is added, which is improper, there the execution. is good and the excess, only, is void". (Story on Agency, 201. Citing Com. Dig. Attorney C. 15. Paley on Agency, by Floyd, 179, and note n. 1 Livermore on Agency, ch. 5, §1, p. 98, 101, 102, edition 1818). And under the late Statute, which entitles either party, as matter of right, to make any amendment, either in form or substance, in pleadings, the declaration could have been remodelled, so as to make it conform to the instrument, not as a deed, but a written warranty only. In any view of the subject then, the Court was right in the Crutchfield vs. Danilly. instructions which it gave to the Jury, and our opinion is, that the judgment below be affirmed. No. 42.-HILLIARD CRUTCHFIELD, plaintiff in error, vs. FRANCIS DANILLY, defendant. [1] If the seller knows of a defect in the title to a part of the thing he sells, which is material to the enjoyment of the rest, and he does not disclose the defect to the buyer-much more, if he represents to the buyer that no such defect exists, and the buyer buys, ignorant of the defect-the buyer, although he has taken a deed, may, in Equity, have a rescission of the sale. [2.] Injunction ought not to be dissolved on the coming in of the answer, unless the auswer has denied the equity of the bill. In Equity, from Crawford Superior Court. Decided by Judge POWERS, June Term, 1854. Motion to dissolve injunction. Francis Danilly filed his bill, setting forth, that in 1852, he had purchased of Hilliard Crutchfield a certain tract of land, containing more than 500 acres, for which he gave notes amounting to $3600. That Crutchfield, at the time of sale, represented to him that he had good title to the land, and that he purchased, in consequence of such representations. That in point of fact, as to one hundred and seventy acres of the land, and including the dwelling and buildings, Crutchfield had no title: but that it had been conveyed by deed to his wife and children, by William Smith, her father. That Crutchfield, at the time of the sale, knew of this state of the title, and concealed it from complainant. That Mrs. Crutchfield was now dead, leaving minor children. That complainant was now sued by Crutchfield on the notes, given for the purchase-money, and the bill sought to enjoin those suits and to Crutchfield vs. Danilly. rescind the bargain. An amendment to the bill, stated that Crutchfield had consented to the making of the deed from Smith to his wife and children, at the time it was made. The answer of defendant admitted most of the facts alleged in the bill, but stated that at the time of the sale, he had told complainant, that as to the 170 acres in question, he had no written title; that his representation was, that Smith had made him a verbal gift of that part of the land, and that he had held it adversely for more than seven years; so that the Statute of Limitations would protect him. He admitted that he knew of the deed from Smith to his wife and children, but denied that he had consented to its execution: but stated, that when applied to by the person who drew it up, to know whether he would feel hurt with him if he drew it, he had replied that he would not feel hurt, but that Smith had no right to convey the land. The motion to dissolve the injunction was made on two grounds: 1st. That there was no equity in the bill, and that complainant had an adequate remedy at Common Law. 2d. That if there was equity in the bill, it was sworn off by the answer. The motion was refused by the Court, and defendant excepted. MILLER & HALL; HUNTER; R. P. HALL, for plaintiff in in error. CULVERHOUSE, for defendant. By the Court.-BENNING, J. delivering the opinion. The first two questions are confined to the bill. They are these (assuming the bill to be true): 1. Does the bill contain any equity? 2. Is not the case made by the bill, one for which there is an adequate remedy at Law? This last question is, indeed, included in the first. VOL. XVI-55 |