Williams v. Gillies

Davis, P. J. : It is now well settled in this State that a partnership may exist between dealers in real estate for the purpose of buying and selling land for profit; and that such partnerships are governed substantially by the same rules as partnerships for dealing in personal property, except as necessarily modified by the operation of the rules of law in reference to the conveyance and assignment of real estate, (Chester v. Dickerson, 54 N. Y., 1; Sage v. Sherman, 2 id., 417; Ontario Bank v. Hennessey, 48 id., 545.) In the case of such a partnership, it may be agreed orall/y between the partners that the title shall be taken, and the business done altogether in the name of one of the partners; and where such an arrangement is made, one legal result is, that the name of the partner used becomes, pro hac vice, the partnership name of the firm, and all the members of the firm may be bound by acts done by him in such name and within the scope of his authority, upon the same principal and to the same extent as are the several partners whose names do not appear in the firm name in ordinary partnerships, for acts done by one of the partners in the firm name. [426] The court below found in this case that the lands described in the mortgage executed by Dobbs, were purchased by Dobbs, Baynor and the appellant, as copartners for their joint benefit, and for speculative purposes, each to share pro rata in the profits. This finding is clearly sustained by the evidence in the case. By mutual arrangement the title of the lands was taken in the name of Dobbs for the benefit of all the parties interested, and he executed the mortgage sought to be foreclosed in this action, in his own name to carry out the arrangement between himself and the other parties interested. The fact that the partnership was unknown to the plaintiff’s testator at the time the mortgage given for a portion of the purchase-money was executed, was not a material one. (Ontario Bank v. Hennessey, supra; Poillon v. Secor, 61 N. Y., 456; Story on Partnerships, § 53 et seq.) The transaction in this case seems to have been altogether a losing one; but that is no reason for relieving either of the partners from his just share of responsibility. Had it proved a profitable one, it is not likely that such relief would be sought, or desired. As between the several defendants who are copartners, it would be highly inequitable that the one whose name was used should stand charged with all the consequences of the unfortunate enterprise. The plaintiffs in their complaint have only prayed, as relief in respect of a possible deficiency, that each partner may be charged separately, precisely as the liability of the several partners with respect to each other existed; and the court ordered judgment accordingly. The appellant is charged by the decree with an equal fourth of any'deficiency that may accrue. The plaintiffs, treating the three defendants as copartners, might have asked for a decree for the deficiency against them m soUdo, which, under circumstances easily imagined, would have been a much harsher judgment against the appellant. He has no cause to complain of the form of the judgment, inasmuch as it relieves him from all liability beyond that which he was bound to bear as between himself and his copartners. We see no reason for disturbing the judgment, and it should be affirmed with costs. Ingalls, J., concurred ; Brady, J., not sitting. Judgment affirmed, with costs.