*264 *SECTION III.-LIABILITIES OF PARTNERSHIPS AND COMPANIES IN RESPECT OF ACTS WHICH ARE NEITHER TORTS NOR FRAUDS. Having seen generally the extent to which one partner is the agent of the firm, and the extent to which directors are the agents of the companies whose affairs are entrusted to them, it is proposed to examine next the power of one partner to bind his firm, and the power of directors to bind their company in particular cases where there is no question of tort or fraud. For the sake of convenience, subjects noticed will be arranged in alphabetical order. 1. Accounts.-An account rendered by one partner relative to a partnership transaction is equivalent to an account rendered by the firm. (m) 1 1. Accounts. 1 The power of one partner to settle accounts, and to assent to a transfer of them, will be found noticed infra under the head Debts. 2. Admissions. The admissions of one partner with reference to a partnership transaction are evidence against the firm (n); but are not necessarily conclusive. (0) An 2. Admissions. (m) Fergusson v. Fyffe, 8 Cl. & Fin. 121, where an account sent by one partner showing a balance due from the firm, and bearing interest at 9 per cent. was held to be binding on the firm. See as to false accounts, infra, § 4. 1An account in the handwriting of the ostensible partner, but not shown to have existed while the partnership was in being, is not competent evidence, in a suit against an alleged secret partner, to show to what the business extended. Oakley v. Aspinwall, 2 Sandf. 7. (n) Wood v. Braddick, 1 Taunt. 104; Pritchard v. Draper, 1 R. & M. 191; Nicholls v. Dowding, 1 Stark, 81; Sangster v. Mazarredo, ib. 162; Thwaites v. Richardson, 1 Peake, 23; Grant v. Jackson, ib. 268; Wright v. Court, 2 Car. & P. 232; and see the last preceding note, and ante, p. 94. As to part-owners, see Jaggers v. Binnings, 1 Stark. 64. (0) Wickham v. Wickham, 2 K. & J. 491, where the point in question was the amount of a debt. 'After the fact of a partnership is proved by other evidence, the admissions of one partner may be received to charge the partnership in relation to transactions during its existence. Phillips v. Purington, 15 Me. 425; Gulick v. Gulick, 14 N. J. L. 578; Goodenough v. Duffield, Wright, 455; Wolle v. Brown, 1 Whart. 365; Boyce v. Watson, 3 J. J. Marsh. 498; Odiome v. Maxcy, 15 Mass. 39. The declarations of a supposed partner, in the absence of the other, are not admissible against the latter until the partnership has been proved aliunde. McFadgen v. Harrington, 67 N. C. 29; admission by one person who afterwards enters into partnership with others is no evidence against them, merely because they and Nixon v. Downey, 42 Iowa, 78; Alcott v. Strong, 9 Cush. 323. But where a partnership is alleged to exist between two persons, the acts and declarations of either bind him, but do not affect the other, and it often becomes necessary to prove the acts and delarations of one at a time, and therefore such testimony may properly be admitted, and the legal effect of it postponed until the judge instructs the jury upon the law of the whole case, whose duty it would be to inform them that the acts and declarations of a party, before the partnership is proved, bind himself only. Jennings v. Estes, 16 Me. 323. Where the authority of a partner to speak for his associates is not shown, his statements, so far as concerns them, are mere hearsay. Heffron v. Hanaford, 40 Mich. 305. After prima facie evidence of partnership, the declarations of one of the partners is evidence to bind the firm, although made on oath voluntarily by him, under the South Carolina summary process. Allen v. Owens, 2 Spears, 170. In an action against partners jointly, an answer in chancery of one of them may be given in evidence by the plaintiff, after the partnership has been proved, to show admission of the plaintiff's demand; and, in such case, evidence to discredit the answer cannot be offered by the other members of the copartnership. Hutchins v. Childress, 4 Stew. & Port. 34. Where two mercantile houses do business under their respective names, but the same partners compose both firms, the acknowledgment of one is prima facie evidence against the other. Sneed v. Kelly, 3 Dana, 538. Where a chose in action against a partnership was assigned, and one of the partners being called upon for pay ment by the assignee, said he would pay to him if he was legally entitled to receive it: Held, that it was sufficient to enable the assignee to maintain an action in his own name against all the partners, on showing a legal assignment. Lang v. Fiske, 11 Me. 385. The "admission" of one partner, that his co-partner is indebted to him, cannot bind such co-partner in a suit by a person claiming through the former. A claim cannot be allowed so to prove itself under the name of an admission. Lewis v. Allen, 17 Ga. 300. Where the vendor of goods, at the time of the sale, professes to sell them to the vendee in his individual capacity, he cannot, in an action against a firm of which the vendee was a member, give in evidence the declarations or admissions of such vendee, that the goods were purchased for the benefit of the firm. Lararus v. Long, 3 Ired. L. 39. The admission of one partner is not sufficient to prove the existence of the co-partnership as against the other partner. Evans v. Corriell, 1 G. Greene, 25; Lea v. Guice, 21 Miss. 656; Hahn v. St. Clair Savings etc. Co. 50 Ill. 456; Degan v. Singer, 41 Ill. 28; Gardner v. N. W. Mnfg. Co. 52 Ill. 367. See, also, Cowan v. Kinney, 33 Ohio St. 422. In assumpsit against the surviving partners of a firm alleged to have consisted of themselves and a person deceased, where the existence of the partnership was in issue: Held, to be error to admit the declarations of such deceased person, made in the absence of the defendants, and not communicated to either of them, the defendants seasonably objecting to such admission, although the jury were instructed that the evidence was not admissible against the defendants, but only to prove that the deceased was a partner, and that he are partners when the evidence is sought to be used. (p) Moreover, in an action against partners, the answer of one of them such proof was necessary. McLellan v. Pennell, 52 Me. 402. The declarations of a partner not a party to the suit, are not competent evidence of a partnership. Martin v. Kaffroth, 16 Serg. & R. 120. In a suit against A and B as partners, declarations of A that B was not his partner cannot be introduced as evidence to exonerate B. Young v. Smith 25 Mo. 341. 1 The admissions of a partner, made during the partnership, may be introduced as evidence against him in favor of creditors of the partnership, but such admissions are not competent evidence against the creditors of the partnership, for the purpose of diverting the assets of the partnership to the payment of his individual debts. Bond v. Nave, 62 Ind. 506. A partner can only bind a co-partner by his admissions within the scope of the business of the firm. Hahn v. St. Clair Savings, etc. Co. sup.; Heffron v. Hanaford, 40 Mich. 305. Nor can his admissions bring matters foreign to the partnership, within the scope of the business. Heffron v. Hanaford, sup. In a suit against surviving partners to recover the amount of a note given by the deceased partner in his single name, his declarations that the transactions for which the note was given were for the partnership business, and that it was a company note, are not admissible in evidence, if there be no evidence aliunde that those transactions were for the partnership. Ostrom v. Jacobs, 9 Metc. 454. Such declarations are admissible against the survivor, the partnership being admitted. Doremus v. McCormick, 7 Gill, 49. In partnership transactions, the acknowledgment of any one concerned in interest may be received in evidence, although the suit may not be in the name of the firm. Fisk v. Copeland, 1 Overt. 383. Declarations of a dormant partner are admissible in evidence against his copartners, if they relate to the partnership business. Haskaskia Bridge Co. v. Shannon, 1 Gilm. 15. Entries made by one partner during the continuance of the partnership, in a book of accounts, are admissible evidence against both. Walden v. Sherburne, 15 Johns. 409. In a suit against a partnership, if a partner voluntarily submits to be examined on the part of the plaintiff, against himself and his co-partners jointly, his evidence is admissible for that purpose; the rule is the same in contract and in tort. O'Brien v. Vantine, 1 Pa. Law Jour. Rep. 79. The answer of one partner, admitting the indebtedness of the partnership, is sufficient to charge the partnership as garnishees. Anderson v. Wanzer, 6 Miss. 587. Where one of two partners had assigned his interest in the partnership property to his co-partner as collateral security for a debt which he owed him, but was still liable for the debts of the firm, and entitled to his proportion of the surplus property after the debts of the firm, and his debt to his partner, were paid: Held, that a paper signed by the partner, who had assigned his interest, and made after the commencement of the suit, stating that, after the (p) Tunley v. Evans, 2 Dowl. & L. 747; Catt v. Howard, 3 Stark. 3. to interrogatories cannot be read against the others (7), unless they have an opportunity of contradicting it. *Companies are affected by admissions made by their di- *265 assignment, he had taken the money of the firm, to recover which the action was brought, and had appropriated it to the payment of the note of another firm of which he was a member, in the hands of the defendant, was admissible in evidence against the firm, in an action of assumpsit for money had and received, brought for the benefit of the assignee alone. Foster v. Fifield, 29 Me. 136. A, being in partnership with B, collected a sum of money in his individual capacity for C, and afterwards executed to the latter a note in the name of the firm for the amount. In a suit against the firm on the note, the plaintiff offered to prove that A, during the existence of the firm, had declared that said money had been used by himself and partner in the business of the partnership: Held, that the evidence was inadmissible. Hickman v. Reineking, 6 Blackf. 387. In an action against the surviving member of a firm to recover money lent to the deceased partner, where the defense is that the money was not borrowed or used for firm purposes, declarations of the deceased partner to third persons, made after the money was borrowed, to the effect that it was borrowed and used for firm purposes, are admissible as against the surviving partner. Klock v. Beckman, 18 Hun, 502. If the admissions of a surviving partner with respect to a transaction within the scope of the co-partnership, made after the death of his co-partner, be competent evidence against the personal representatives of the deceased partner, they are not conclusive. McElroy v. Ludlam, 32 N. J. Eq. 828. The declarations of the alleged partners, unaccompanied by acts, and unconnected with any of their declarations proved by the other party, are inadmissible in their own favor. Phillips v. Purington, 15 Me. 425. The acts, declarations, or admissions of one of two partners, are not admissible as evidence for them, in an action against them as a firm, and where they have jointly pleaded the general issue. Hutchins v. Childress, 4 Stew. & P. 34. A entered into partnership with B in the business of tanning, and C bound himself, in a covenant to B, for A's conduct as a partner for a certain time; Held, that in an action by B against C on the covenant, the admissions of A, made after the expiration of the stipulated time, were not admissible as evidence against C. Hotchkiss v. Lyon, 2 Blackf. 222. When defendant is sued as surviving partner of a firm, in an action on the case for fraud and deceit in the purchase of a slave, the declarations of his deceased co-partner, by whom the contract was made, before and after the purchase, as to his object in purchasing, are not admissible evidence for the defendant, to show that his co-partner made the purchase on his own individual account, and not on account of the firm. Dixon v. Barclay, 22 Ala. 370. A declaration of a partner, that a liability incurred by a third person, at his request, in borrowing a sum of money, was for the benefit of the firm, does not bind his co-partner. Thorn v. Smith, 21 Wend. 365. (2) Parker v. Morrell, 2 Ph. 453; Dale v. Hamilton, 5 Ha. 393. rectors or agents in the usual course of business, and relative to matters within the scope of their authority, but not by other admissions. (r) The acts and declarations of a partner may be given in evidence to prove his assent to the junction of his firm with the firm of a third person; also the conduct of the third person's firm. Wood v. Connell, 2 Whart. 543. A delaration by a surviving partner that the partnership owed the deceased a certain sum, may be proved, to show that there was an account stated with the deceased in his life-time. Cunningham v. Sublette, 4 Mo. 224. The admissions or declarations of one partner after dissolution, and not under a new authority, are not evidence against a former partner. Craig v. Alverson, 6 J. J. Marsh. 509; Crumless v. Sturgess, 6 Heisk. 190; Dougelot v. Rawlings, 58 Mo. 75: Tick v. Mulholland, 48 Wisc. 419. And, on the other hand, partnership transactions with third persons, which took place after the sale of his present interest by one partner to another, and after the retiring partner had ceased to be a member of the firm, are not admissible in evidence against him, upon the question of the value of his interest when sold, nor upon the question of fraud or mistake in the contract of sale, and equally inadmissible are judgments rendered against the new firm, to which the retired member was no party. Dortie v. Dugas, 55 Ga. 484. Where A and B were partners in trade, and upon their dissolution B assigned, for value, all his interest in the partnership effects to A: Held, that B would not be permitted by his mere declaration, made after such assignment, to defeat an action brought in (r) See Bell v. The London and NorthWestern Rail Co. 15 Beav. 548; Meux's their joint names. Owings v. Low, 5 Gill & J. 134. In an action of assumpsit by partners, for work and labor: Held, that evidence of the statements of one of the partners, made after the dissolution of the partnership, so far as they tended to show a new contract destroying the partnership claim, and giving to each partner a separate demand for his part of the debt, was not admissible; but that the statements of such partner, so far as they showed a payment made to himself, might be proved. Lefavour v. Yandes, 2 Blackf. 240. The admissions of one partner, made at the time of the payment to him of a debt due to the partners, and at a time subsequent to a dissolution, are admissible against the other partners, as the admissions of an agent relative to an act within the scope of his authority, made at the time when such act was done, are admissible in evidence to bind his principal. Kirk v. Hiatt, 2 Ind. 322. In Pennsylvania, under the statute of 1838, authorizing one firm to maintain an action against another, although a partner in one is also a partner in the other, the acts and declarations of such common partner, done and made after the dissolution of the partnership, are admissible in evidence in such action. Tassey v. Church, 4 Watts & S. 141. A was indebted to a partnership on a note. He paid a portion of it to B, one of the members of the firm, which B promised to indorse on the note, but neglected to do so. After the dissolution of the partnership, C, the other Executor's case, 2 DeG. M. & G. 522. |