Nisbet v. Patton

The opinion of the court was delivered by Gibson, C. J. The case of White v. Demary, 2 N. H. Rep. 546, though apparently in point, depended on a principle entirely distinct from that which governs the transactions of partners. There the defendants were but joint baillees; and the law is settled that the act of a tenant in common shall not prejudice the title of his co-tenant, or charge him with a tort. It is otherwise with partners, each of whom constitutes the other a general agent of the firm with power to bind it, not only by his contracts, but by his acts in the scope of the business. His authority to contract has never been disputed ; and the responsibility of the firm for the legal consequences of his acts, stands on a principle equally settled. Thus, in Willet v. Chambers, Cowp. 814, an attorney whose partner had received money to be laid out on a mortgage, was held liable for it though the mortgage was forged by the receiving partner without the knowledge of the other. The same principle was held in the Manufacturers and Mechanics Bank v. Gore, 15 Mass. Rep. 75, and Boardman v. Gore, Id. 331; and it has been decided in Biggs v. Lawrence, 3 T. R. 454, that a trading on joint account in contraband goods, will implicate an innocent partner. So in Hadfield v. Jameson, 2 Munf. 65, it was determined that the fraud and misconduct of one part owner which produced the loss of a ship and cargo, affected the claim of both to freight under a charter party. It is, however, conceded, that both would have been answerable here for the act of Nisbet in an action on the contract to redeliver the notes after the purposes of the deposit were satisfied; and this concession includes the decisive fact,that the refusal of Nisbet was the refusal of his co-partner. Being so for any purpose, it must be so for every purpose; for it is not easy to see why it should be his act to charge him on a contract, and not his act to charge him with a tort. It is not doubted that partners may [123] be sued in trover where they join in the conversion ; and. do they not join where the act of one is the act of all ? It can be but of little account to them whether they are made to respond in the one sort of action or the other; for though it be true that there is no contribution between tort feasors, it is equally true that a partner may be made answerable to the firm for misconduct in involving it in responsibility. It is said indeed that trover to recover damages for a destruction of the joint property, is the only action founded in tort that can be maintained between partners. That would seem, however, to have been asserted without sufficient consideration ; for it is not easy to see why a partner should not be answerable to the firm, as in any other case of principal and agent, for gross and wilful misfeasance. In Hadjield v. Jameson, it was taken for granted, that the delinquent partner was liable to the other for the Toss of the ship ; but certainly not in trover, for his acts were evidence of any thing but conversion. The act then of Nisbet, being prima facie the act of his partner, was evidence of a joint conversion, subject however to be rebutted by proof, if such there were, that the latter had openly disclaimed the act at the time ; and the direction was in all respects essentially right. Judgment affirmed.