Bank of Commerce v. Phillips

Luke, J. In the plaintiff’s petition it is alleged that the defendant is a member of “Gardner Lumber Company,” a firm composed of the defendant and Eobinson. It is conceded that the note sued on was executed in the name of “Gardner Lumber Company by Eobinson,” for the purchase of certain shares of stock in a corporation, and the stock-certificate was attached to the note as collateral security. It is further conceded that the note sued on was a Florida contract, and the issues raised by the pleadings were to be tried according to the law of Florida. The evidence was undisputed that the giving of the note was without the knowledge or consent of the defendant, and was not necessary to the conduct of the business of the'partnership, “Gardner Lumber Company,” which was engaged in the sawmill business at Gardner, Florida. The contract of partnership was in evidence, and by none of its terms was authority given to the partner Eobinson to- execute the note of the partnership or to create debts other than were necessary to the conduct of the business. In order for the plaintiff to recover against the defendant, the partner Eobinson must have been acting within the scope of the partnership, or the other partner, the defendant- here, must have known of the transaction or by some act ratified the execution of the note. In Lanier v. McCabe, 2 Fla. 32 (48 Am. E. 173), the Supreme Court held: “Where several persons form an association for the purpose of establishing and putting in operation a steam sawmill, one of the parties can not issue notes in the name of the company which shall bind the other members of the company, except the authority be given by the articles of their association, or otherwise. The partnership must be in a trade or concern to which the issuing or transfer of bills is necessary or usual, otherwise a *11 copartner will not be liable for the act of his partner unless he give express authority.” See also Chandler v. Sherman, 16 Fla. 99. While ordinarily every partner is a general and authorized agent of the firm, his power to act as such agent must be within the scope of the partnership business. No article of partnership authorized the execution of the note sued on; the note was given without the knowledge or consent of the defendant, and when knowledge came to him that the note had been given (which, according to the evidence, Avas when he received notice of intention to sue), he denied liability. In the evidence there Avas nothing to sIaoav such a course of dealings as would authorize or ratify the -execution of the note, and, there being no proof that the purchase of the stock for Avhich the note Avas given Avas necessary to the conduct of the business of the partnership, it Avas not error to direct a verdict for the defendant. Judgment affirmed. Wade, G. J., and Jenhins, J., concur.