McCleery v. Thompson

Opinion,

Me. Justice Mitchell:

It has long been settled that a judgment confessed by one partner in the firm name, even for a partnership debt, is void against the non-assenting partners, and will be struck off by the court on motion. It is equally settled, however, that the judgment is good against the partner confessing it, and that the partnership goods may be sold under an execution on such judgment for a firm debt: Gerard v. Basse, 1 Dall. 119; Grier v. Hood, 25 Pa. 430; York Bank’s App., 36 Pa. 458; Taylor v. Henderson, 17 S. & R. 456; Harper v. Fox, 7 W. & S. 142; Ross v. Howell, 84 Pa. 129. I may note in passing a serious error in the syllabus of Grier v. Hood, in stating that “ one partner has power to confess a judgment against the firm,” etc. The words of Justice Knox, on page 432, are the reverse: “ That one partner cannot confess a judgment against another partner, even for a partnership debt, is a conceded legal principle.”

The present case was argued as if an execution had issued on the judgment, and its validity were involved; but we do not find anything on the record, as printed, to raise this question, and it is entirely unnecessary to discuss this branch of the case further, as there is another ground on which the action of the court below must be sustained.

It is clear that this judgment note was signed by Thompson after the dissolution of the partnership, and after all his authority as a partner was at an end. By the terms of the dissolution Thompson sold out to Brown, and retired. Thenceforth the business was exclusively Brown’s, and the confession of judgment by Thompson was not only without authority, but in fraud of Brown’s rights. Much stress was laid by the learned counsel, at the argument, on the fact that appellant’s claim is admittedly a partnership debt, justly due by Brown as well as Thompson. But the question is not whether both partners are liable, but whether the creditors can make a short cut to judgment, by the Unauthorized act of one. This the settled rules of law prohibit.

Judgment affirmed.