Doak v. Swann , 8 Me. 170 ( 1831 )

The opinion of the Court was read in the ensuing JYovember term in Cumberland, as drawn up by

Weston J.

If the defendants were partners in the business of making paper at their mills, or if Pierce was authorized by the written evidence in the case to sign the note in question in their bei half, the action is maintained. Their ownership of the mill would not make them partners ; but if they voluntarily unite to carry on the manufactory of paper, either in their own mill, or in any other, on their joint account, or for their common benefit, they may be regarded as partners in this particular business, even as between themselves ; much more where strangers are concerned. And we are of opinion that the written agreement is evidence that they did thus associate. They made certain arrangements professedly for the sake of economy ; to enure to whose benefit ? Doubtless to their general or joint benefit. They agree what sum shall be paid to two of their associates respectively, for their personal services. Out of what fund they are to be paid is not expressly stipulated; but it must be intended out of their joint fund or credit. The whole, in their associated capacity, contract with a part of their number as individuals. It results from the nature of their connexion, that they must all share in the profits,, and be responsible for losses, arising in the prosecution of the business. In what proportions, it is not necessary in this action to settle $ but in the absence of any express agreement upon this point, it.might be presumed that they would share profits and responsibilities, according to the share of each in the mill. It has b.een urged that as owners of the mill, they must be deemed to be tenants in common only; otherwise by the sale and transfer by one of his interest in the mill to a stranger, a partner might be imposed upon the others, without their consent, and even against their will. To this it may be replied that we do not hold them to be partners, because they are owners of the mill, but because they have united in the prosecution of a joint business, which is the basis of all partnerships.

But aside from the. question of partnership, Pierce was expressly constituted the agent of the defendants, in the purchase of stock and in the sale of their paper. In the exercise of this authority, they have imposed no. restriction. It does not appear that he was furnished with funds, wherewith to make immediate payment, for stock purchased. It may well therefore be considered as within the scope of his agency to purchase on credit; and if so it would result that he might give to a party of whom he purchased, a note or memorandum in writing as" evidence of the debt thereby created. So long as it was limited, as it certainly must be, to the purchase of stock on account of his principals, the giving of a noté would have no tendency to increase their liability; and it would be better for all concerned than to have the business for future adjustment, in the shape of open and unsettled accounts. In the case of Emerson & al. v. the Providence hat company, 12 Mass. 242, cited in the argument, it .was. held that the defendants were not liable for notes signed by a sub-agent, who had no authority directly from them. And thie decision was very properly placed upon the ground that a confidence exists between principal and agent, which is not communicated to sub-agents.

The exceptions are overruled, and the judgment affirmed.