Swan v. Stedman , 45 Mass. 548 ( 1842 )

Dewey, J.

We perceive no valid objection to the ruling of the presiding judge in the present case.

Upon the question of the authority of one partner to bind his copartner by a contract under seal, the doctrine of the case of Harrison v. Jackson, 7 T. R. 207, is still adhered to, though practically the rule has been somewhat relaxed, perhaps, by the various decisions as to the competency of parol evidence to establish the previous assent or subsequent adoption necessary to give force and effect to such contract. It is now held, that such a contract under seal, executed by one partner, may bind the other, provided he gives his assent thereto previous so the execution, or afterwards ratifies and adopts it; and that such assent or adoption may be by parol. This subject was fully considered in the case of Cady v. Shepherd, 11 Pick. 400, and this rule was distinctly recognized and stated in the opinion of this court, given on that occasion. The decision in that case goes fully to sustain the instructions to the jury upon the general question, raised in the present case, as to the authority of one partner to bind his copartner by a sealed contract. See also 3 Kent Com. (3d ed.) 47.

But it was further contended at the ■ trial, and instructions to that effect were asked, that if the other partners had no knowledge of this sealed contract until after the expiration of the time stated in the partnership contract for the dissolution of the same, in such case a mere silent assent would be insufficient, and an express assent would then be requisite to constitute a ratification. But we do not perceive any sound reason for a distinction between the two periods of time, that should require an express assent in the one and not in the other, to constitute a legal ratification or adoption of the act of the other partner. The assent, whenever given, has reference to a contract executed during the partnership ; and in the instruction given to the jury, it was confined to a period while the concerns of the partnership were open, and while the party thus assenting might be benefited by the contract, if it proved an advantageous one ; and this obviates the objection, taken at the argument, as to the want of sufficient consideration to make the assent a binding and valid agreement.

If the contract had reference to the business of the partnership, and the defendants were to be participators in the profits arising therefrom, and if it was made known to them before the partnership concerns were closed, (although not until after the time which was indicated in the articles of partnership for the expiration of the original partnership,) and if they then assented to it and adopted if, such act would be binding; and such, assent need not be an express one, but may be implied from the acts and declarations of the parties whose liability is attempted to be established, and from any other proper evidence tending to show such assent. See Chit. Con. (5 Amer. ed.) 258 a, and cases there cited.

Neither of these objections, therefore, can avail the defend ants.

Nor do we perceive any valid objection to the right of tne plaintiff to recover, arising from the suggestion that this contract was without the business of the partnership, and therefore would not be obligatory on the other partners, even if it had been a Contract not under seal. The business of the partnership, as well as the power to bind each other, is stated very broadly in the articles of partnership. It is thus : “ Article 5. It is mutually agreed that the business transactions of the firm shall be that of purchasing wheat, making and selling flour, purchasing and selling produce and provisions, purchasing, selling and manufacturing wool, and finally, transacting all business of trade and commerce, that each or either person concerned may in his prudent judgment deem to be for the mutual interest of all parties concerned ; and each partner shall be bound by the acts of the other or others in all transactions relating to the business of the company.”

We cannot doubt that this contract was so far within the scope of the business of the partnership, as to have warranted the execution, by one of the firm, of a simple contract binding on the others ; certainly so, if subsequently assented to and ratified by the others.

Judgment on the verdict.