Dougal v. Cowles , 5 Day 511 ( 1813 )

Baldwin, J.

This case presents two questions :

1. Whether, the facts being found, the defendants are liable upon the bill ? If not,

2. W hether, upon this declaration, the pla'udiif can recover the amount, as for goods sold and dchvcicd ■

I am of opinion, that the plaintiff is entitled to recover on both grounds , and that the declaration, and the charge, will meet the demand in either shape.

When a co-partnership exists, and a purchase is made, by one partner, in the usual course of business, for the use of the concern, the company are, unquestionably, liable for the debt, whether named in the contract or not ; And no one will doubt the implied power of the partner making the purchase, to hind the company, hy note, or by n hilt of exchange in their name, for the amount. Selw. 1103. Ibid. 323. If is equally clear, that any one partner may him! the company, by his acceptance, in the name of the firm, or nen in ids own name, of a bill drawn on them. Mason v. Ramsey, 1 Cowp. Rep. 384. And it is not necessary that such acceptance should be signed by the name of the firm, nor even by the individual making the acceptance. A parol acceptance is sufficient, and this may be express or implied ; for whether accepted or not, is often a question of taw. Powell v. Jones, 1 'Esp. 17. n. 1. Sproat v. Matthews, 1 Term Rep. 182. Pillans v. Van Mierop, 3 Burr. 1669. Even an agreement to accept an existing bill, is, in contemplation of law, an acceptance. If a merchant, therefore, draws a bill on himself, it is of course, accepted; for, every drawer of a bill engages it shall be accepted and paid.

If these principles are correct, it is unnecessary to enquire, what would be the effect, or how far the company would be liable, on a bill drawn for the same consideration, on a stranger, and signed only by the name of the purchasing partner for the bill in question, was drawn by a partner in the firm, on the company of which he was a member, for goods purchased for their use ; and was, of course, accepted by him, in behalf of the company, payable according to its tenor, ninety days after sight, by the house in Southington. The defend" ants are, therefore, liable as on a bill accepted.

If this were doubtful, I think, they are liable on the claim for goods sold and delivered, as stated in the third count. As there can be no doubt of the general liability of the company, for goods so purchased, and that a bill dishonoured, unless expressly received as payment, does not discharge the debt; the only question is, whether the declaration is so framed as to meet the demand ? In this count, the plaintiff states an indebtedness on the part of the defendants, for goods sold, &e.; that in consideration thereof, they drew a bill, in the. name of Smith, on themselves, which has been presented, and payment refused ; that the defendants, in consequence thereof, became liable, and assumed to pay the debt. I am aware, that it may be objected, that this case, as stated in this count, does not rest simply on the ground of a revival of the original debt, by the dishonour of the bill; because this 1)111 is slated to have been drawn by one of the partners, in his own name, on the íirm ; and it does not appear by the statement of the case in the motion, that he had an express power thus to bind the company ; yet, from the transaction, as slated in the declaration and motion, it is evident, that the debt, for which the company were originally liable, was not, by legal inference, discharged by the bill ; and there is no pulence that it was so by express contract.

The case is simply this : The acting partner in the purchase, draws an order on the firm, who were the debtors, to pay the debt, at their usual place of business. This order is. not paid. The debt, then, remains as it was before the order was given, the debt of the company.

It is apparent, that the object of this count, i=, to recover on the ground of the original debt, the bill being dishonoured. "I presume, it is the general practice, in such eases, to declare upon the debt and promise, generally, without mentioning the bill. This is undoubtedly proper, and I think it the best, for it is the most simple mode of declaring ; yet, a declaration staling, specially, the fact from which the legal inference will be drawn, that the debt exists, in support of an allega-üüii 01 indebtedness, and thereon grounding a promise, is equally valid ; for, surely, (he same legal effect must follow, whether the facts from which such inference b made, are shewn in evidence, or pleaded on record,

1 do not, therefore, advise a new trial.

The other Judges, severally, concurred.

New trial not advised.