Hoppock v. Moses

Church, Ch. J. —The difficulty with the plaintiff’s case is, that there was no evidence that the defendant’s testator was a member of the firm of Moses & Whallon, to whom they sold the goods in question. Curtis Moses had previously carried on business as the agent of the defendant’s testator, and had, as such agent, purchased goods of the plaintiffs, and if these purchases had been made in the same way and in the name and upon the credit of Chester Moses, without notice that the agency had ceased, the latter would have been bound; but an agency to transact business for an individual is terminated by the formation of a copartnership (Callanan agt. Van Vleck, 36 Barb., 324; Kirby agt. Hewitt, 26 Barb., 607 ; Palmer agt. Stevens, 1 Denio, 471). The only agency in this case was an individual agency by Chester Moses to Curtis Moses, to purchase goods and cany on business in his individual name. These goods were purchased in the name of Moses & Whallon, and the plaintiffs were, therefore, bound to take notice of the termination of the agency of Curtis Moses, and that a new authorization was necessary to enable him to purchase property on the credit of the firm. The plaintiffs chdm, that the defendant’s testator was a member of the firm of Moses & Whallon, but the only evidence of this was that Curtis Moses said so. He had no more authority by acts, or declarations in behalf of Moses & Whallon, to bind Chester Moses, by virtue of his [215] former agency, than he had to take in a partner without the consent of Chester Moses. He had no authority from the latter to purchase goods in the name of the firm, and his doing so, was an assumption of authority of which the plaintiffs had legal notice by the manner of doing the business. The declarations of one member of a firm, are not evidence to prove a partnership against another member, nor can the declarations- of an individual agent of one member be used for that purpose against either. I have carefully examined the authorities cited by the counsel for the appellants, and all of them are clearly distinguished from this, and none of them would justify a recovery in this case. The j udgment must be affirmed, with costs.