Barnard v. Lapeer & Port Huron Plank Road Co.

Martin Ch. J.: Barnard & Coe are admitted to have been “partners in the lumbering business, owning lands in St. Clair county as such partners, and manufacturing lumber therefrom.” While such partners, Coe subscribed the name of the firm to the articles of association of the Plank Road Company, but without Barnard’s knowledge or consent. This subscription, it is claimed, made Barnard a stockholder in the Company. No rule is better settled than that one partner can not bind his co-partner by any contract not within the immediate Scope of the partnership, unless with such co-partner’s knowledge and consent. Each . partner is an agent for all the members of the firm, in the transaction of all business of such firm; but as to matters foreign to such business, he is regarded as a stranger. The general business of the [278] firm being that of manufacturing lumber, and the ownership of land as incident thereto, the subscription to stock in ar corporation, or to articles of association for the creation of one, was not an incident of such partnership. Incidental benefits would not authorize one partner to bind his fellow, and no authority so to bind him is shown. And the knowledge and assent required to bind the co-partner must be established by evidence affirmatively showing it, or from which it may be clearly inferred. This is sought to be established from the fact that assessments were made, and their payment demanded of the firm, which were unresponded to; and it is urged that it was Barnard’s duty, upon such demands, to repudiate any interest in the Company, aud that his silence should be construed into a recognition of his relation as a stockholder. Now, a demand either through the mail, or personal, is sufficient to bind a stockholder, but not to create one. If the person of whom demand is made be not one, it is not his duty to disclaim the character of stockholder; it is enough that he does not respond to such demand. The simple admission that demand was duly made of the firm, is not one of a personal demand of Barnard, nor is it of any thing more than a fact— its effect being a question of law. There is no evidence, nor any admission, in the case, that knowledge of the demand ever came to Barnard; and certainly none that he ever, by any Avord or act, recognized any connection with the Company. The liability of Barnard is also sought to be established from the testimony of Johnson. This testimony is objected to, as inadmissible under the case as presented, and for general incompetency. We do not regard the stipulation as the making of a case, but only as an admission of facts for the purpose of obviating the necessity of producing witnesses to prove them. Any other facts necessary for either party to show, could still be proven. [279] The testimony was competent as tending to show the interest of the partnership in the road, but falls far short of being sufficient to establish, or of tending to fix, any liability upon Barnard. The judgment must be reversed, and a new trial granted. The other Justices concurred.