Feigley v. Sponeberger

The opinion of the Court was delivered by Kennedy, J. The only question in this case was whether the defendant, Sponeberger, was liable to pay the plaintiffs for goods sold and delivered by them to the other defendants, as partners of [566] Sponeberger, after he had given the plaintiffs notice not to trust them on his credit without an order from him, or he come himself in person. This question seems to have been decided frequently. Chancellor Kent, in treating the subject, says; “ a sale to one partner, in a case within the scope and course of the partnership business, is, in judgment of law, a sale to the partnership. But if the purchase be contrary to a stipulation between the partners, and that stipulation be made known to the seller, or if, before the purchase or delivery one of the partners expressly forbids the same on joint account, it has been repeatedly decided that the seller must show a subsequent assent of the other partners, or that the goods came to the use of the firm.” 3 Kent’s Com. 45. For this doctrine he cites the following cases, which go to support it fully. Willis v. Dyson, (1 Stark. N. P. 164); Galway v. Matthew, (1 Camp. N. P. 403), S. C. 10 East 264; Leavitt v. Peck, (3 Conn. 124). And notwithstanding he mentions one or two cases somewhat at variance with it, where the partnership consisted of three or more persons, Rooth v. Quin, (7 Price 193), and Kirk v. Hodgson, (3 Johns. Ch. Rep. '400), yet he declares the better opinion to be, “ that it is in the power of any one partner to interfere and arrest the firm from the obligation of an inchoate purchase which is deemed injurious.” 3 Kent’s Com. 45. And indeed it would seem to be unreasonable and contrary to analogy to hold otherwise; for the power of one partner to bind the others is not essential to the constitution of a partnership. In most, if not in all cases, it is but an implied power, and seldom, if ever, expressly provided for or given by the terms of the partnership agreement. It would therefore be strange if the exercise of it could not be expressly provided against or forbidden by any one member of the firm, so as to protect himself against claims created contrary to his assent and express direction, by one or more of his partners, after notice given by him to the party making the claim not to trust or credit nis partners or any of them on his account, without his express and direct authority to do so. We therefore think that the instruction given by the court below to the jury was correct. Judgment affirmed.