Hymes v. Weld

Simmons, Justice. "Weld, general agent, for use of the Bowker Fertilizer ■Company, sued Hymes aud Strauss as partners, upon a promissory note for $90, dated April 1, 1888, and due August 1st after date, the note being for fertilizers. Hymes was the only one of the defendants served, and he filed a plea of no partnership and non est factum. The suit was brought in a magistrate’s court, where there was a judgment for the plaintiff. Hymes took the case by appeal to the superior court, and the jury there found for the plaintiff. Hymes was granted a new trial, and upon the second trial the jury again found for the plaintiff Hymes’ second motion for a new trial was overruled, and to this he excepted. It appears from the evidence that Hymes & Strauss were a farming partnership; that the fertilizers for which the note was • given were bought for use on the farm, and were used upon it, and were necessary for carrying on the business of the farm; also that it was the invariable custom of the fertilizer business, where fertilizers were sold upon credit, to require the purchaser to give notes therefor. This note was signed in the name of the firm by Strauss. On previous occasions similar notes in the name of the firm had been given for fertilizers by Hymes, and had been recognized by the firm and paid by it.- It does not appear that there was any stipulation between the partners restricting to either one of them the power of purchasing or giving notes. On this subject the articles of copartnership were silent. Hymes contended that the evidence failed to show express authority to Strauss to bind the firm in this manner, and that, being a non-trading partnership, no implied authority to do so existed. It has been held in this State that under our statutes [744] a membei’ of a firm organized to conduct farming operations may bind the firm by giving a promissory note for supplies to be used in carrying on the business which the partnership was formed to conduct. Selman v. Brown, Nunnally & Co., 78 Ga. 332. There was some question as to whether the note sued upon in this case was governed by the laws of this State or by those of the State of Florida, where the common law on this subject prevails. It is not important, however, to consider this question, for in either case we think the evidence warranted the jury in finding both defendants liable upon the note. While it is true that at comxxxon law it is not, as a matter of law, implied that a member of a non-trading partnership has authority to bind the firm by promissory notes, for, ordinarily, the giving of notes is not usual or necessary in conducting the business of such partnerships, yet such authority could be established by proof that the giving of such notes was customary in the business of the firm, or was necessary in order to carry on the business, as well as by proof of other facts from which the authority in the particular instance might, as a matter of fact, be implied. It would not be necessary to show that authority was given in so many words. See Story, Partnership (7 ed.), §§126, 102a. What is said in the case above cited (78 Ga. 332), as to the common law on this subject, is merely dictum,. and besides does not necessarily conflict with what we rule upon the state of facts now before us. There was no error in the charges and refusals to charge complained of, which would require a new trial. Judgment affirmed.