Smith v. . Kerr

Jewett, C. J. It was objected on the trial that the lease, which was under the seals of the parties, could not be given in evidence under the declaration which, as insisted by the defendant’s counsel, was in assumpsit. This objection was overruled by the common pleas; and I am of opinion that the declaration was sufficient in a justice’s court, to allow the plaintiffs to give in evidence under it the written agreement. The objection to it was, that the declaration was in assumpsit, and the agreement being under the seals of the parties was not, therefore, admissible in evidence as the foundation of an action of assumpsit upon a simple contract. The justice, in his return, states that “ the plaintiffs declared in assumpsit in writing which is hereto annexed.” That is, the plaintiffs declared in writing, which the justice annexed to his return; which shows, that although the justice called it a declaration in assumpsit, it may be as well called a declaration in covenant as in assumpsit. There was a notice annexed to the declaration that the paper annexed was a copy of the lease referred to in the declaration. The agreement produced on the trial purported to have been signed and sealed by the parties respectively; the copy annexed omitted the sign of the seals. The notice was no part of the declaration, nor the. copy of the lease technically an oyer of it; and therefore an objection to the admission of the lease or agreement in evidence, for a variance between it and the copy given, on the ground that the sign of the seals had been omitted, can not be sustained. It is not necessary in a justice’s court, in an action upon a sealed instrument, that the declaration should contain an averment that the' instrument was signed and sealed by the parties or either of them. It is enough to declare generally for a breach of contract, referring to the contract or agree *148 ment in such terms as to identify it, for the breach of which damages are sought to be recovered; or to set out the contract according to its legal effect, without averring that it was sealed by the parties. The latter was done in this declaration with more than ordinary precision. To sustain the action, it was competent to give in evidence, on the trial, an agreement between the parties, whether sealed or not, made at the time, and containing the stipulations alledged in the declaration. The defendants’ counsel objected to the giving of the agreement or lease in evidence, also on the ground that it had not been proved that Abner Potter, one of the plaintiffs, and Charles S. Kimble, one of the defendants, executed the agreement in person or by attorney duly authorized. The objection was overruled. Before it was made, the subscribing witness had testified that the signatures of two of the plaintiffs, Smith and Isaac Potter, to the agreement, were in their hand-writing; that he saw Isaac Potter sign the name of Abner Potter, and that they were partners; that Kimble was about the store at the time the agreement was executed; that he had seen him write, and that in his opinion, the signature of Kimble to the agreement was in his proper hand-writing. Other witnessés had testified that the signature of Kimble was in the hand-writing of Kerr. The objection was properly overruled, for if it was material whether the name of Kimble to the agreement had been put there by himself or by Kerr, there was evidence enough to authorize the fact to be submitted to the jury. The defendants covenanted with the three plaintiffs, and if it was admitted that one of them, Abner Potter, did not sign or seal the instrument, the law would not convert it into a covenant with the other two. All the covenantees must sue, although they did not all sign and seal the agreement. (Petrie v. Bury, 3 Barn. & Cress. 353.) The omission of the name of Abner Potter as a co-plaintiff would have been fatal. (Smith v. Tallcot and Ransom, 21 Wend. 202.) The judge charged the jury that although the lease or agreement was not executed by all the parties, yet if they, being in *149 partnership, assented to the execution of it after it was executed, it was equally binding as if executed by them individually.' There was an exception to this charge. On the trial, it was admitted that the defendants at the date of the lease were in partnership; and it was proved, that at the time the lease was executed, Kimble was about the store where it was executed ; that Kerr and Kimble occupied the ashery and premises as partners during the term covered, by it. After the execution of the lease, Kimble employed one of the witnesses to repair one of the kettles, and said that he ánd Kerr had hired the ashery of the plaintiffs for one year, and the defendants employed one Valentine to run the ashery for them, and he did so until-the kettle gave out. It was proved, among other things, that Kimble in speaking in relation to the breaking of the kettle, said that Valentine broke it; that he did not know how he broke it, but thought it was through carelessness. On being asked whose loss it would be, said that he did not know, but he expected from the writing they would have to pay for it. The ground of the exception is, that no prior authority from Kimble to Kerr to execute the lease in his name, or subsequent ratification by Kimble, either verbal or by writing without seal, is sufficient to give validity to the lease as the sealed contract of Kimble. Whatever may have been the technical doctrine of the common law, as to the authority of an agent to execute a-sealed instrument in the name of his principal, so as thereby to bind him, as the party thereto, unless the authority is conferred by an instrument under seal; it has been decided in England that one partner, in the presence of his copartners, by parol authority, may execute a deed for them in a transaction in which they were all interested. It amounts in judgment of law to an execution of the deed by all the partners, though sealed by one of them only. (Ball v. Dunsterville, 4 T. R. 313; Williams v. Walsby, 4 Esp. N. P. 220; Steiglits v. Eggin ton, 1 Holt’s N. P. 141; Brutton v. Burton, 1 Chit. R. 707 ; 3 Kent’s Com. 5th ed. 47.) There was evidence enough in this case to have authorized *150 the jury to find that the lease was executed by Kerr for Kimble in his presence, and which he was authorized by parol by Kimble to do. But that ground was not taken at the trial. The point made is whether one of two partners may be bound by a sealed contract, executed in the names of both, by the other, in his absence, in reference to a transaction in which both were interested as partners, if there is a subsequent parol adoption of the act by the absent partner; and I think it well settled that an absent partner may be bound by a deed executed on behalf of the firm by his copartner, provided there be either a previous parol authority or a subsequent parol adoption of the act. (Skinner v. Dayton, 19 John. 512 ; Anderson v. Tompkins, 1 Brock. C. Rep. 462; Story on Part. p. 176 to 181; Cady v. Shepherd, 11 Pick. 405; Gram v. Seton, 1 Hall, 262; 3 Kent’s Com. 47.) The more rigid rule of the common law, which held that one partner, from that mere relation, could not bind the others by a deed or instrument under seal, either for a debt or any other obligation, even when contracted in the course of their commercial dealings and business, and within the scope thereof, unless the authority was expressly given under the seals of the other partners, and include the very act done under seal, has been greatly relaxed by modern decisions; and although they profess to retain the rule itself, they qualify it very much, in order to make it suit the exigencies of commercial associations. (3 Kent’s Com. 5th ed. 47, 48.) I think that under the circumstances of this case, it was competent for Kimble to adopt the act of Kerr without seal) and thereby give validity to the contract as .his deed. The exception, therefore, can not be sustained. The defendants’ contract was not to make good the ordinary deterioration of the kettles, resulting from fair and proper usage—unless the kettles broke or became so injured as should render them unfit for the place and use where they were then used. If damages had been claimed for an injury to the kettles, or either of them, less than a breaking, or less than that, which rendered them unfit for the place and use where they . were at the time of the contract; the burthen of proof of such *151 injury, and that it resulted from improper usage, would have ,lain with the plaintiffs. In this case they showed that one of the kettles was broken during the term. That, within the express terms of the contract, subjected the defendants to pay the plaintiffs the sum stipulated as its value, without regard to the fact whether it was the result of negligence on .their part or not. The judgment of the supreme court must be reversed, and that of the common pleas affirmed.