Webster v. Stearns , 44 N.H. 498 ( 1860 )

Nesmith, J.

These were several actions of assumpsit, wherein the plaintiffs claimed to recover one half of two promissory notes, which they alleged they had paid for the use and benefit of James A. Stearns & Co., and which originally had been signed as sureties by said plaintiffs, at their request. The defendants claimed that the original contracts and payments were solely for the benefit and on account of James A. Stearns in his private right. It was admitted that when the two promissory notes were given — one to the Amoskeag bank, under date of December 15,1859 ; the other to the Derry bank, under date of November 24, 1860, each being for the sum of $500 — the defendants were partners in trade in the city of Manchester, and that the said Stearns signed each of said notes as principal, and both of the plaintiffs as sureties.

The plaintiffs offered as testimony the acts and declarations of Stearns, done and made at different times, tending to show that the money procured on the said notes was intended and went for the use of the defendants as a firm. By the general law of partnership the act of each partner, during the continuance of the partnership, and within the scope of its objects, binds the others. It is the act of each and of all, resulting from a general and mutual delegation of authority. By the very act of association, each one is constituted the agent of all; hence the acts and declarations of each member or agent, in furtherance of the common objects of the association may be shown as the acts and declarations of all; and such admissions are received as original evidence, competent, as constituting part of the res gesim, and binding the firm. 1 Greenl. Ev., sec. 112, and note, and 113; Mann v. Locke, 11 N. H. 246; Story on Part., sec. 107 ; Cady v. Shepard, 11 Pick. 400.

Admissions, whether of law or of fact, which have been received and acted upon by others, are conclusive against the party making them, in all eases between him and the persons whose conduct he has thus influenced. It is of no importance whether they were made in express language to the person himself, or implied from .the open and general conduct of the party. In such cases the party is estopped, on grounds of public policy and good faith, from repudiating his own representations. 1 Greenl. Ev., secs. 27, 207, and authorities in notes. Hence the acts and sayings of one member of a firm, within the scope of their business, are binding upon the firm, whether honestly or dishonestly done or said. Pierce v. Wood, 23 N. H. 519 ; Locke v. Stearns, 1 Met. 560. But whether the sayings and doings of Stearns were within the scope of the partnership business, and the money was in good faith obtained and actually appropriated and used for the-firm, or was borrowed on his own credit, or for his own private or personal purposes, was the material question of fact for the jury to settle. There was evidence introduced by the plaintiffs on these points, competent for them to weigh; therefore the court rightly rejected the motion for a nonsuit. And the whole evidence, we think, was impartially submitted to the jury under proper instructions and limitations by the court; so that they might apply it fairly to the determination of the main question involved in the case. We do not perceive why the instructions to the jury were not substantially in accordance with the instructions asked for by the defendant. They appear to us to have been consistent with the law of the case. There must, therefore, in each case, be

Judgment on the verdict.