Cook v. Bloodgood

COLLIER, C. J. — -It is clear, that all the counts in the declaration are in assumpsit. True, some of them may attribute neglect of professional duty, or even impropriety of conduct, yet they all set out the defendant’s undertaking to collect the money, and alledge a promise to make good the loss resulting from a breach of their undertaking. Mardis’ admr’s v. Shack-leford, (4 Ala. Rep. 493,) is a decisive authority on this point. There can be no question but Lamkin transcended his powers in receiving his own notes in satisfaction of the plaintiff’s execution against Harrison and others, and that he is liable to Cook for any injury he may sustain as a consequence of that act. [Story on Partn. 264-5; Smith v. Loring, 2 Ohio Rep. 440.] But it does not follow from this admission, that both the defendants are not liable to thé plaintiff. It is stated as a general rule, that where the creditor of one of a firm, takes a note in the name of the partnership, the company are not bound to pay it, unless it passes into the hands of a bona fide [686] holder. [Lansing v. Gaine & Ten Eyck, 2 Johns. Rep. 300; New York F. Ins. Co. v. Bennett, 5 Cow. Rep. 574; Leroy v. Johnson, 2 Peter’s Rep. 199.] It has been held, that one partner alone, may release, or even -compound, or compromise a partnership demand; that as a debtor may lawfully pay his debt to one of them, he ought also, be able to obtain a discharge upon due payment. Further, that as the release operates against the partner himself, and no suit could be brought for the debt without uniting him as a plaintiff, the release of one plaintiff would necessarily bar the action as to the other. [Story on Párln. 171-2.] Thus, we see, that an act of one partner which would be invalid infer se, may be operative and effectual in respect to third persons. This is a most salutary rule, and clearly defensible in morals. If the law were otherwise, it would require great caution in many cases, in ascertaining whether a person would be safe in transacting business with one partner, on account of the firm. The admission of one partner within the scope of the partnership, and relating to its business, are obligatory upon the firm; for every partner is an agent of the firm, and virtually embraces the character both of principal and agent; and his rights, powers, duties, and obligations, it is said, are in may respects governed by the same rules and principles as those of an agent. [Story on Partn.] It results from these principles, that the admissions of a partner, as it respects persons dealing bona fide with the company, are in legal effect the admissions of the firm. In professional partnerships, formed for the practice of the law, if one member of the concern acknowledges the receipt of money for a client, the latter need not inquire how the claim was collected, or whether paid at all, or not; but may charge the firm upon the assumption, that the receipt expresses the truth. And in such case, the partner who had no positive agency in giving the receipt, cannot gainsay its truth. It is stated as an established principle, that where an admission is made by a party, which, if true, entitles another to an action against him, if he bring suit, he shall be bound, whether he spoke true or false. Hall, et ux. v. White, 3 Carr. & P. Rep. 242, is a strong case on this point. That was an action [687] of detinue for deeds and writings. The evidence was, that the defendant wrote to the plaintiff concerning a proposed interview on the subject. “ I have no objection to submit the deeds to Mr. Watson’s perusal, nor to his taking extracts.” Another letter prescribed conditions, and said the deeds would not be forthcoming unless the conditions were complied with. Best, Ch. J. remarked, “ If the defendant said that he had the deeds and thereby induced the plaintiffs to bring their action against him, I shall hold, that they may recover against him, although the assertion was a fraud on his part. It appears by his letter, that he did say so; and therefore, I am of opinion, that the verdict must be for the plaintiff.” So in Den ex. dem. Mordecai’s heirs v. Oliver, 3 Hawks. Rep. 479, a defendant in ejectment in a conversation before suit brought, with a view to being made a defendant,' and trying the title, declared that he was in possession ,• and the action was thereupon brought against him: Held, that he has concluded, though in truth he was not in possession. And Lord Kenyon ruled, that the defendant was concluded by his admission, and could not show that he was mistaken; for whether the misrepresentation was unintentional or designed, it had equally the effect of inducing the plaintiff to sue. [Doe, ex. dem. Eyre v. Lambly, 2 Esp. Rep. 635.] Many other cases to the same effect are collected by the learned annotators upon Phillips on Ev. 2 Vol. 305-6, et post. This view is decisive to show, that the receipt of Lamkin to the sheriff, as it respects the plaintiff', is conclusive upon Cook; and that the latter cannot be permitted to show that the receipt was gived for Lamkin’s individual notes. The cases of Gullett v. Lewis, and Kirk v. Glover, maintain, that a satisfaction of the execution by Lamkin’s notes, is not such a payment as the plaintiff is bound to recognize; and if he had so elected, lie might have proceeded against the sheriff and made the money of him; unless the sheriff received the notes of the defendants in execution by Lamkin’s directions or consent. If the notes of Lamkin were received by the sheriff either with, or without Lamkin’s approbation, the execution was not satisfied pro tanto, and the return of the sheriff thus far, might be vacated on motion, and another execution awarded. The plaintiff, we say, would be entitled to [688] either of these remedies according to the facts. If then, Cook, an innocent party, is compelled to pay the plaintiff his demand to an amount equal to the notes received by Lamkin, he must be remitted to all the remedies which the plaintiff had for its collection, that he may reimburse himself. This conclusion rests on such obvious principles of equity, and legal analogies so well established, that it is unnecessary to support it by authorities, or illustrate it by reasoning. It results from what has been said, thatthe judgment of the Circuit Court must be affirmed.