Ihmsen v. Lathrop , 1884 Pa. LEXIS 16 ( 1883 )

Mr. Justice Trunkey

delivered the opinion of the court, January 7th 1884.

Unless all the witnesses who had knowledge of the persons who were members of the firm of Ihmsen & Co. falsified, Domenec Ihmsen was not a partner, but was the duly authorized agent to transact the business of that firm. It was within the line of his employment to manage the business, make contracts for materials and labor, and for sale of products, and to sign the firm name to checks, notes, drafts or other commercial paper.' The learned judge of the Common Pleas instructed the jui’y that if he performed the duties of his employment, he was liable upon the contract of his principal as if a partner, for this is the meaning of the plaintiffs first, point, which was affirmed. There was no denial of the facts upon which that point was based. Domenec Ihmsen, in accord with his authority, signed the name of Ihmsen & Co. to the letters, and to the contract, and to the note in suit, and delivered the same to Reed & Son, and he negotiated the contract; upon these facts the court ruled that the verdict should be for the plaintiff. He does not claim that there was anything in his words or acts, or otherwise, to indicate to Reed & Son that he was not a member of the firm. Upon the simple fact that he transacted the business for and in the name of the firm, the court decided that Reed & Son had the right to believe he was a partner, and to credit him as such. Had he done the business in his own name, he would have been liable as well as his principals. Ho authority lias deen cited nor reason given for holding that a clerk, salesman or agent of a partnership who uses the firm name in- transacting its business, should be liable as a partner, without other affirmative evidence that he held himself out as a partner. It is unusual for an agent or salesman in doing the business of his employers, to give notice that he is only a servant to the person with whom he is dealing. This case differs from Purgan v. Cahoon, 1 Pennypacker 320, for there, evidence was adduced of Burgan’s acts and declarations in connection with the making of the contract, and the whole submitted to the jury with instructions that his acts must have been such as to justify a reasonable belief that he was a partner. Here, the court charged that if Domenec Ihmsen did certain things named in the point, he was a partner; and the first assignment of error is sustained.

Proof having been made that Domenec Ihmsen admitted that he had seen the city directory of 1880,' and also the one of 1881, and made no effort to have his name changed in the latter, although lie knew he was held out "as a partner in the firm of Ihmsen & Co. in the former, both were received as evidence tending to show that he had suffered his name to be published as a partner. The court acted upon the testimony showing the admission. If the jury believed the testimony of Domenec Ihmsen, that he did object to the manner in which his name was published, and refused to pay for the directory until correction, then they could have given no weight to the publication. The publication of the directory of" 1880 was without his knowledge, and, hut for the alleged admission, could not have been received in evidence against him. Whether he had allowed his name, without objection, to be published as a partner, was a question for the jury.

Judgment reversed, and venire facias de novo awarded.