Wright v. Boynton , 37 N.H. 9 ( 1858 )

Bell, X

In Thurber v. Blackburne, 1 N. H. 242, it was held that nil debet is a good plea in debt on a judgment, rendered in another State; but that under that plea the jurisdiction of the court and matters in discharge of the action, and not the merits of the judgment itself, are to be inquired into. If this were held otherwise, it has been, so far as we are aware, uniformly held in those jurisdictions where nil debet is not regarded as a good plea on demurrer, that it can not be objected to after verdict. Gould’s Pl. 500; Ch. Pl. 480; Rush v. Cobbett, 2 Johns. Ca. 256; Meyer v. McClure, 2 Johns. 183; Swank v. State, 3 Ohio N. S. 429.

In the present case the court, in which the judgment now in suit was rendered, had no jurisdiction of the person of Boynton, who was then a resident of this State, and so set up in the writ, by service of process, nor in any other way, unless by a special appearance. It appears that after the action had been pending in court for a year, Boynton, by an attorney of the court, appeared, and moved the court that the action should be dismissed as to him, because he was not an inhabitant of Massachusetts, and no personal service had been made upon him in that State, and there was no actual and effectual attachment Of his property. The appearance and motion were in terms made for this purpose, and no other.

The question then arises, whether such a restricted appearance, for the purpose of objecting to the jurisdiction merely, will give to the court jurisdiction of the person, if they had none before; and we are of opinion, upon considerations of public policy and convenience, that such an appearance alone ought not to confer such jurisdiction. Such an appearance must be understood to be made upon application to the court, and leave granted without prejudice, if the application is unsuccessful. "We think, therefore, the ruling of the court upon this point was proper. See Cunningham v. Goelet, 4 Denio 71; Larrabee v. Larrabee, 33 Me. 100, and other cases cited by defendants.

The defendant, Boynton, executed to Bussell a power-of-attorney, by which he appointed him his agent, and authorized him to purchase and sell certain kinds of goods, in his name, and to transact business of that kind, with capital furnished by him; and to use his name generally in the business. Bussell, in the name of Boynton, entered into partnership with Hayward, the other party named in the writ, in a business of that kind. The court held that the power-of-attorney did not give to Bussell the power to make Boynton a partner with Hayward, and we think rightly.

One who has a bare power or authority from another to do any act, must execute it himself, and can not delegate it to a stranger; for, this being a trust or confidence reposed in him personally, it can not be assigned to one whose integrity or ability may not be known to the principal, and who, if he were known, might not be selected by him for snch a purpose. The authority is exclusively personal, unless, from the express language used, or from the fair presumptions growing out of the particular transaction, a broader power was intended to be conferred. Story’s Ag., secs. 13, 14; 2 Kent’s Com. 633; Paley’s Agency 175; Broom’s Maxims 665; Bank v. Norton, 1 Hill 501; Cochran v. Islam, 2 M. & S. 301.

Now each partner possesses an equal and general power and authority, independently of articles, or express stipulations regulating their powers, in behalf of the firm, to transfer, pledge, exchange, or apply, or otherwise dispose of the partnership property and effects, for any and all purposes, within the scope and objects of the partnership, and in the course of its trade or business.. Story on Part. 144. He may pledge the credit of his partners to any amount, and in all simple contract dealings, relating to the partnership business, he is, in his own person, the representative of the firm, and the act of one partner is the act of all. Cary on Part. 29, 30; 3 Kent’s Com. 41, 43. Powers thus broad can not be conferred by a mere agent on a stranger, without express authority.

The testimony of Hayward was admitted, against the defendants’ objection. Though he was named in the writ as a defendant, yet, as no service was made upon him, because of his residence out of the jurisdiction, he was not a party to the suit, so as to render his evidence inadmissible on that account. Gibbs v. Bryant, 1 Pick. 118; Purviance v. Dryden, 3 S. & R. 402; Stockham v. Jones, 10 Johns. 21; Lefferts v. DeMott, 21 Wend. 136; Gay v. Gray, 9 Cowen 44; Leroy v. Johnson, 2 Peters 186. But his testimony is incompetent to prove the existence of a partnership between himself and the defendant, on the ground of interest. Latham v. Kenniston, 13 N. H. 203; and see Jewett v. Davis, 6 N. H. 518, and 1 Cowen and Hill’s Notes to Phil. Ev. 115.

The admission of this evidence furnishes no ground for disturbing the verdict, since the ruling was in favor of the plaintiff, who now moves for a new trial. Fowler v. Tuttle, 24 N. H. (4 Poster) 9.

Upon the point that the verdict is against evidence, the evidence and documents referred to in the case have been submitted to us, and carefully examined, and it is not perceived that they add any thing material to the facts stated in the case.

It is insisted that the defendant was liable as a partner, because, knowing that a partnership had been formed in his name by his agent, he did not object; and because he acted as a partner, and because he was in fact a partner.

The jury were instructed that if the defendant, knowing a partnership had been formed by his agent, assented to it; or if he held himself out to the public, or to the plaintiff, as a partner, he was liable as such. It is urged that though the instructions to the jmy were correct statements of unquestioned legal principles, yet they were not suitable to the case, in the state of the evidence in which it was presented to the jury. The testimony, it is said, was uncontradicted and unimpeached, and the facts given in the evidence should have been assumed to be true; and the charge should have related to the effect of those facts, as they applied to the other circumstances of the case, instead of leaving the whole matter to the jury. It was said if Boynton, knowing that a partnership had been formed in his name, by his agent, afterwards assented to it, he would be chargeable. It is contended the charge should have been, that, if knowing what had been done, he did not dissent, if he was silent, and did nothing relative to it, he would be bound.

"We think the principle clearly settled by the authorities, that when a principal is informed of what has been done by his agent, in his name, though he may have acted without or contrary to his instructions, or beyond the strict limits of his authority, he must dissent, or give notice within a reasonable time; and if he does not, his assent and ratification should be presumed. Paley’s Agency 171; 2 Kent’s Com. 616; 1 Liv. Pr. & Ag. 396; Benedict v. Smith, 10 Paige 127; Cairnes v. Bleeker, 12 Johns. 300; Richmond Co. v. Starks, 4 Mass. 296; Vianna v. Barclay, 3 Cowen 281; Broom’s Maxims 676, &c.; Copeland v. Mer. In. Co., 6 Pick. 203; Hatch v. Taylor, 10 N. H. 538. And in the same manner a person who knows that his name is used by another person as a partner, without his consent, should publicly disclaim the connection; otherwise his acquiescence will be inferred. Young v. Axtell, in Waugh v. Carver, 2 H. B. 242; Exparte Mathews, 2 V. & B. 125; Guidon v. Robson, 2 Camp. 302; Hoare v. Dawes, Doug. 371; 3 Kent’s Com. 31; Hosketh v. Blanchard, 4 East 144; Hicks v. Cram, 17 Vt., 2 Wash. 454. The ease of Burritt’s Survivors v. Kench, 4 McLean 325, is much like the present case. It was there held that if one, authorized to act as agent, associate with himself a partner, and the firm act for a long time as agent, with the knowledge and without the dissent of the principal, he is bound by their contracts. The case of Brigham v. Peters, 1 Gray 139, is an authority directly to the point that the instructions given in this case, though in themselves correct, were not such as might properly have been given upon the evidence, because they did not fully meet the case, and were not as favorable to the^plaintiff as they should have been. See Pierce v. Whitney, 22 Me., 9 Shep. 113; Newton v. Pope, 1 Cowen 110.

But though the instructions were not as full or as favorable to the plaintiff as they might properly have been, yet we think this does not furnish a cause for setting aside the verdict. In the case of Moore v. Ross, 11 N. H. 557, the principle to be applied in such cases was considered; and the court say: If the party desire an instruction of the court upon any particular point, or that the court should give certain views of the law to the jury, and the judge omit so to instruct the jury, the proper course is for the party to move the court so to instruct; and if the court decline, he may then take the exception. But he should not lie by until after the trial, and then take the exception, when it is too late to supply the omission. See authorities there cited, and Selleck v. Turnpike Co., 18 Com. 453; Cole v. Taylor, 2 N. J. 59. Here it does not appear that any instruction was requested, or that the view now insisted upon was taken by the counsel for the plaintiff.

The court will not set aside a verdict, as against evidence, where the credibility of witnesses is to be considered, presumptions are to be made, and inferences to be drawn, and where the nature of the evidence is such that different persons might reasonably have different impressions concerning it; though they might have arrived at a result different from that found by the jury. Wendell v. Safford, 12 N. H. 171; Lisbon v. Bath, 23 N. H. (3 Foster) ; Gould v. White, 26 N. H. (6 Foster) 178.

Judgment on the verdict.