A partnership as type-founders; but Drake was a secret partner. written agreement relative to the partnership business was entered into between the plaintiff and Knight and Sturgey, and for a breach of this agreement by them the action was brought. Drake's name did not appear in the agreement; he did not sign it; nor when the contract was made was he known to the plaintiff to be a partner. It was nevertheless held that all three partners were liable jointly for a breach of the agreement, inasmuch as the agreement itself was clearly entered into by the firm, and 'Drake, like any other undisclosed principal, was liable to be sued as soon as his position was discovered. Parol contracts. In conformity with the same principle, if one partner acting in fact for the firm, orders goods and they are supplied to him, the firm will be liable to pay for them, although no mention was made of his co-partners, (i) and they were unknown to the seller of the goods. (k) So, if A. in his own name only Illinois, etc., R. R. Co. v. Owens, 53 Ill. 391. A orders goods of B by letter; the copartnership of which B was a member forwarded the goods to A, without a bill or letter, who received them, supposing them to have been forwarded by B individually: Held, that the copartnership might maintain an action for goods sold and delivered against A. Child v. Wofford, 3 Ala. 564. In an action brought by a tannery firm for a false warranty of a mule bought by one member thereof, without mention that it was for the firm: Held, that the burden of proof was on the defendant to sustain his motion for a nonsuit, although there was no showing that the mule had ever been used in the tannery. Little v. Hamilton, Phill. Law, 29. A mechanic's claim for a lien may be filed by a firm, one of whose members is named as the contractor. Chambersburg, etc. Manfg. Co. v. Hazelet, 3 Brews. 98. A partner insured firm property in his own name, being assured by the agents of the company that this would cover the interest of the firm. Afterwards, the agents refused to correct the policy: Held, that the firm were entitled to have the policy reformed. Snell v. Atlantic, etc. I. Co. 18 Am. Law Reg. N. S. 79. (i) City of Lond. Gas Lt. and Coke Co. v. Nicholls, 2 Car. & P. 365; Whitwell v. Perrin, 4 C. B. N. S. 412. (k) Ruppell v. Roberts, 4 Nev. & Man. 31; Robinson v. Wilkinson, 3 Price, 538; Bottomley v. Nuttall, 5 C. B. N. S. 222. 2 To the point that partners are liable for goods furnished for the use of the firm, though the vendor supposed himself dealing with, and giving credit to, an individual partner, not knowing of the existence of the firm. See Poole v. Lewis, 75 N. C. 417; Reynolds v. Cleveland, 4 Cow. 282; Roth v. Moore, 19 La. Ann. 86; Tucker v. Peaslee, 36 N. H. 167; Baxter v. Clark, 4 Ired. L. 127; Given v. Albert, 5 Watts & S. 333; Bisel v. Hobbs, 6 Blackf. 479; Griffith v. Buffum, 22 Vt. 181. See, however, Watt v. Kirby, 15 Ill. 200; Sinklear v. Lambert, 5 Phila. 36. underwrites a policy of insurance, but the profit or loss arising from the transaction is to be divided between him and B., both A. and B. will be liable to the insured. (l) These cases establish the important proposition, that dormant partners are liable for the debts of the firm, *notwithstanding their connection with the firm *339 dormant partwas unknown to its creditors when the debts were contracted.' Liability of ners. One partner only liable, he On the other hand, if one partner only is dealt with, and the circumstances are such as to show that he was acting and was dealt with on his own account, i. e., as a principal, only being and not as the agent of the firm, he alone is responsible.' (7) Brett v. Beckwith, 3 Jur. N. S. 331, M. R. 1A partnership for the manufacture of iron was composed of four persons, the names of two of whom did not appear, and these lived at a distance. The two acting partners bought land in their own name for the purpose of obtaining from it wood to be used in the manufacture of iron, and so far as it was paid for, it was paid for out of the partnership effects: Held, that the land was partnership property, and the partnership having failed, the two dormant partners were liable to the vendor for the balance of the purchase-money. Brooke v. Washington, 8 Gratt. 248. See, however, contra, as to the liability of dormant partners in land. Gray v. Palmer, 9 Cal. 616. A co-partner may contract on his own account, and make himself alone liable for merchandise bought for the co-partnership account, if the vendor choose to accept him. Sylvester v. Smith, 9 Mass. 119; McDonald v. Parker, Ky. Dec. 245; Smith v. Hoffman, 2 Cranch. C. C. 651; Sinklear v. Lambert, 5 Phila. 36. When no credit is given, and there is no expectation, originally, of looking to one partner for debts incurred by the other, no recovery against the former dealt with. can be had. Chapman v. Devereux, 32 Vt. 616; Floyd v. Wallace, 31 Geo. 688. See, also, Watt v. Kirby, 15 Ill. 200. Defendant's being a partner in a firm charged in book-account is not, of itself, conclusive of his liability in an action thereon, for it may be shown by parol on whose account the articles charged were delivered, and the parties were competent witnesses for themselves or each other to that point. Burton v. Ferris, Brayt. 78. The fact of the creditors keeping their books and stating their accounts in the names of the firm with whom their dealings were had, without mentioning the defendant, who was also interested in the transaction, does not alone exonerate the defendant from his liability to them, nor manifest an intention to waive their claim upon him. Baring v. Crafts, 9 Metc. 380. The plaintiff was employed by the defendant on his credit alone, to open and develop a coal mine on lands owned by the defendant with others. It not appearing that the other proprietors requested the defendant to engage in this enterprise, or authorized him to employ the plaintiff to perform this service: Held, that the mere fact that they were co-tenants with defendant in the land, was not enough to warrant the presump Examples. Thus, where persons work a coach in partnersnip, each having his own horses, and one of them orders fodder on his own account, he alone is liable for it. (m) So, in the ordinary case of an agreement between an author and a publisher, to the effect that the publisher shall pay for the paper, printing, and other expenses of publication, and that after reimbursing himself and deducting a commission, the profits shall be divided equally, the author is not liable for the paper or printing which may have been supplied and executed for the publisher. (n) With respect to contracts in writing it is to be observed that a Form of written contract or other instrument required by statute to be contracts. in writing and signed by the party to be charged, only binds those partners who actually sign it (o); but if signature by the party to be charged, or his agent, is sufficient, the signature of one partner, in the name or on behalf of the firm, will bind all the partners. (p) It is often a matter of difficulty to determine whether a particular contract is entered into by the firm through one of the partners or by that one partner only. There is nothing to prevent one person tion that they were partners with him in his scheme to develop a coal mine upon it. Stannard v. Smith, 40 Vt. 513. Where one co-partner makes a sale or disposition of the partnership property in his own name, and without disclosing the name of his co-partner or co-partners having an interest therein, at the same time warranting the soundness thereof, also in his own name, suit may be maintained against him for a breach of this warranty without joining his copartner in the action. Cookingham v. Lasher, 38 Barb. 656; Clark v. Holmes, 3 John. 148. Where a debt is contracted by one partner in his own name alone, in order to charge the firm, it must appear that the consideration was used by the firm with the knowledge and approbation of the defendant; or, that the debt was subsequently assumed by the firm. Nichols v. English, 3 Brews. 260. Where money is loaned to members of a partnership on their individual contract, the fact that it is applied to the payment of partnership debts does not constitute the lender a creditor of the firm. National Bank v. Thomas, 47 N. Y. 15. (m) Barton v. Hanson, 2 Taunt. 49. Mr. Collyer treats this as an exception, depending on particular custom, but this view is not correct. The law is the same in Scotland; see Jardine v. M'Farlane, 3 Ross. L. C. on Com. Law, 575. (n) See the Scotch case of Venables v. Wood, 3 Ross. L. C. on Com. Law, 529; Wilson v. Whitehead, 10 M. & W. 503; but see Gardiner v. Childs, 8 C. & P. 345; where the paper was supplied for the specific book. (0) Swift v. Jewsbury, L. R. 9 Q. B. 301, reversing Swift v. Winterbotham, 8 Q. B. 244. (p) See Duncan v. Lowndes, 3 Camp. 478. from entering into a contract as a principal, and yet for and on behalf of another (q); and when A. enters *into a con- *340 tract for B., it may not be easy to say whether it is B. who contracts, or whether it is A. for B.'s benefit. And yet the true answer to this question determines whether B. is or is not liable on the contract.' The cases on this subject relate principally to bills of exchange and promissory notes, to which it is now proposed to pass. 3. Bills of exchange and promissory notes. Although an ordinary contract not under seal, entered into by an agent for an undisclosed principal, is binding on that 3. Bills and principal when discovered, and he can be sued upon it, notes. the same rule does not apply to bills of exchange and promissory notes. For, subject to the qualification that the name of a firın is equivalent to the name of all the persons composing it (r), no person whose name is not on a bill or note is liable to be sued upon it. (s) In order, therefore, that a bill or note may be binding on a firm, the name of the firm must be upon it; and if the names of one or more of the partners only are upon it, the others will not be liable to be sued upon the instrument, whatever may be their liability as regards the consideration for which it may have been given. (t)❜ 2 (2) See, in addition to the cases cited hereafter, Paice v. Walker, L. R. 5 Ex. 169; Tanner v. Christian, 4 E. & B. 591; Cooke v. Wilson, 1 C. B. N. S. 153; Parker v. Winlow, 7 E. & B. 942. See, also, Kay v. Johnson, 2 Hem. & M. 118, where an agreement for a lease entered into by directors was enforced against them individually. 'An agreement in form, in the singular number, signed in the name of a firm is joint and not joint, and several or several. Brown v. Fitch, 33 N. J. L. 418. A contract drawn by one partner, and signed by the other in the partnership name, is the agreement of both as partWitter v. M'Neil, 4 Ill. 433. ners. An agreement signed by one of three co-partners, who together furnished the funds for the business to a fourth partner, who was managing agent, contracting to pay him $500 per annum and his traveling expenses, held not an individual but a partnership contract. Hills v. Bailey, 27 Vt. 548. (r) Infra, note (x) et seq. (8) Lloyd v. Ashby, 2 C. & P. 138; Ducarry v. Gill, 4 ib. 121; Eastwood v. Bain, 3 H. & N. 738. (t) Bottomley v. Nuttall, 5 C. B. N. S. 122; Miles' claim, 9 Ch. 635. As to the difference between an acceptance in the form A. for B., and B. per proc. A., see O'Reilly v. Richardson, 17 Ir. Com. Law Rep. 74: "Where the proprietors of a line of canal boats, by articles between them Bills and notes payable to a person who is uncertain. A contract entered into with the chairman of directors for the time being, or the directors for the time being, or the purser or treasurer or secretary for the time being, is, in point of law, a contract with the chairman, the directors, or the purser, treasurer, or secretary, at the time the contract is entered into; and, on the ground of want of certainty, bills of exchange and promissory notes made payable to the treasurer, &c., for the time being of a company, are invalid, as bills of exchange and promissory notes, and cannot be sued upon as such. (u) *First, as regards bills having the name of the firm upon them. A bill drawn, indorsed or accepted in the name of the firm is considered as bearing the names of all the name of firm. persons who actually or ostensibly compose the firm at the time its name is put to the bill; and consequently all those persons, including as well dormant as quasi-partners, may be sued upon the bill. (x) *341 (a) Bills in selves, agreed that the business of the concern at Rochester should be conducted by J. A., one of the proprietors, in his own name, and that at Albany it should be conducted by W. M., an agent, but in behalf and upon the responsibility of the defendants, who were two of the proprietors; that no co-partnership name should be used, and no paper made, accepted or indorsed in the name or on account of the co-partnership; and that each party should raise his share of the money needed by the concern upon his own responsibility, and the other parties were not to be liable therefor, but all the parties were to share equally in the profits: Held, that a bill of exchange drawn by J. A. in his own name to raise money for the business of the concern upon, and accepted by W. M. in his name, and which was discounted by the plaintiffs, bound all the proprietors as acceptors: Held, further, that all the proprietors were chargeable as drawers; and that no notice of non-payment was necessary, the drawers and acceptors being the same persons. Bank of Rochester v. Monteath, 1 Den. 402. (u) Yates v. Nash, 8 C. B. N. S. 581; Storm v. Sterling, 3 E. & B. 832, and Cowie v. Sterling, 6 E. & B. 333. 'A note made by one partner, in which he says, "I promise to pay," etc., but subscribes the partnership name, "AB & Co.," is binding on the firm, and not on the partner alone who executed it. Doty v. Bates, 11 Johns. 544. Where the articles of co-partnership do not fix the name of the firm, and a contract is made by one partner for the joint account, a note executed by one for the whole, in the name of himself and company, is binding upon all. Aspinwall v. Williams, 2 Hill (S. C.), 64. A party can only be bound on a note executed in a firm name, who is actually a member of the firm executing the same, or who has held himself out as a member, so as to give the firm credit on his responsibility. Sargent v. Collins, 3 Nev. 260. (x) See, as to dormant partners, Swan v. Steele, 7 East, 210; Wintle v. Crowther, 1 Cr. & J. 316; and as to quasi-partners, Gurney v. Evans, 3 H. & N. 122. A clerk who affixes the name of the firm is not liable on the bill. |