Larkin Co. v. Faggen

Opinion by Henderson, J., The statement of claim sets for[h a lease in writing under seal between the plaintiff as lessor and Faggen Bros., Solomon Faggen and Henry Faggen lessees. The liability of the lessees named is not denied, but the plaintiff seeks to recover a judgment against the legal representative of Joseph L. Greenwald on the ground that he was a member of the firm of Faggen Bros, at the time the lease was executed. The attempt is therefore to charge him personally in an action on a writing under seal to which he was not a subscribing party. The right to recover is based on the written agreement. It is conceded by the learned counsel for the appellant that one partner cannot bind another by a sealed instrument, and many authorities compel this concession, among which is the recent case of Funk v. Young, 241 Pa. 72. The implied authority arising out of the relationship to bind each other is limited to ordinary dealings within the scope of the business of the partnership, but contracts under seal relating to future action are out of the usual course of business and are not recognized as binding on non-assenting partners. Assuming that a partnership existed, it was necessary for the plaintiff to show that Greenwald assented to the execution of the lease before it was signed, or that he ratified it afterwards. It is not [433] pretended that any evidence was introduced showing approval by him of the contract before it was signed, and a case could only be made out therefore by the presentation of such evidence as was sufficient to satisfy a jury that he ratified it. This the plaintiff attempted to do by offering a check for $250, dated June 30, 1914, signed, “Faggen Bros. “S. Faggen “Countersigned Jos. L. Greenwald, “A. B. M.” It was not alleged that Joseph L. Greenwald countersigned the check. That was done by A. B. Miller, who was shown to have been his agent, but the weakness of the position in this respect is that the case is destitute of evidence to show that either Gréenwald or the agent knew that the lease had been executed, or that Greenwald was bound by the act of the persons who were alleged to have been his partners. Neither Greenwald nor Miller are shown to have known what the check was to be used for. As evidence of ratification, it lacks the essential element that the act of the agent should have been known by the principal, and that the latter should have been fully informed of all the material facts and circumstances connected with the agent’s act. In the absence of evidence that the facts were communicated to the party to be charged, or that he had knowledge of them and assented to that which was done for him, ratification cannot be successfully claimed. If the principal had carried out or offered to perform part of an unauthorized agreement, ratification might be implied if it appear that he had knowledge of the whole agreement at the time of the performance of the part, but we have no such case here. There is no evidence of knowledge by Greenwald of the circumstances of the countersigning of the check or of its existence, and there was therefore *no evidence of ratification which the court should have ^submitted to the jury. The assignments are dismissed and the judgment affirmed.