Chamberlain v. Dow

Manning J.: As joint contractors merely, or as partners, if they were such, the agreement was not binding on Chamberlain and Thomas or either of them, as it was not in writing, and the price of the machine exceeded fifty dollars. The judge charged that if they purchased the machine in company, the receipt of it' afterwards by Thomas took the case out of the Statute of Frauds. By company, we understand the charge of the Court as saying together, or as joint contractors, and not as partners. As joint purchasers neither had power to bind the other by subsequently accepting the machine. As to partnership, it appears Chamberlain and Thomas on the trial gave evidence of an agreement between them•selves to purchase a threshing machine of Dow & Fowler, and to operate the same as partners; and that before the machine was received by Thomas he had released Chamberlain from the agreement on .the payment of six cords of wood by Chamberlain; and it is argued -the charge is correct on the ground that Dow & Fowler had no notice of the dissolution of the partnership when the machine was received by Thomas. Admitting for the sake of argument all that is claimed for the agreement between Chamberlain and Thomas, that is, that they were partners —the evidence showing only an agreement to become [325] partners, and a termination of the agreement before Thomas received the machine — the charge of the Court makes no mention of, and is not based on a partnership transaction and a want of notice of the dissolution of the partnership. For the reason, we presume, -if there was evidence of a partnership, that there was no evidence the contract was made with Chamberlain and Thomas as partners, by the agent of Dow & Fowler, or that he or they knew of its existence, and were therefore entitled to notice of its dissolution, to warn them against trusting to the acceptance of the machine by Thomas alone if they wished to hold Chamberlain. Persons having no knowledge of a partnership are not entitled to notice of its dissolution. The judgment must be reversed, with costs, and a new trial ordered. Christiancy and Campbell JJ. concurred. Martin Ch. J.: The defendants in error, through their agent, McKercher, agreed verbally with the plaintiffs in error to sell them a threshing machine for $300 and cost of transportation from New York to Michigan; and that they would give them an order on the freight agent of- the Detroit and Milwaukee Railway Company for said machine, and leave the same with one Eddy. No note or memorandum in writing was made of this agreement, nor money paid by way of earnest; but the agent, ten or twelve days after, drew an order directed to the freight agent of said road, at Holley, to whom a machine had been sent by the defendants in error, ordering its delivery to the plaintiffs in error, and such order was left with Eddy to be delivered to the plaintiffs in error. It did not appear whether Eddy had ever delivered such order to any one, but the machine was afterwards in possession of Thomas, one of the plaintiffs in error. [326] I can not presume that Thomas obtained possession of the machine, except upon the production and delivery of such order; and if such be the fact, his possession was the possession of Chamberlain, as well as of himself. Unless the agreement had been repudiated before the order was given, • each in receiving it and obtaining the property under it was the agent of the other. Having jointly agreed to purchase, both were bound by delivery to either, if such delivery were made under the contract; and such performance by the plaintiffs in error took the case out from the operation of the Statute of Frauds. The forwarding of the machine by the defendants in error for the purpose of executing the contract, coupled with the delivery of the order to Eddy, according to the agreement made between the parties, in my opinion, had this effect; but if not, the acceptance of the property by one of the joint purchasers under the order, without objection or repudiation of the contract by the other, most clearly had. In every joint purchase, each purchaser makes, of necessity, his co-purchaser his agent for the receipt of the property; in other words, the delivery to one under the contract is a delivery to all. I hold, therefore, that the delivery of the order to Eddy for the use of Chamberlain and Thomas, according to the agreement with them, together with the sending forward of the machine, evidently for the purpose of executing the contract, and its acquisition by Thomas, under it — for I will not presume that he obtained it except upon such order' — was such performance by Dow & Fowler as took the case out of the Statute of Frauds; that the acceptance by one of the plaintiffs in error was the acceptance by both, as joint purchasers; either obtaining the property under the order acted for both, and his act bound both. The delivery of the order to Eddy was a delivery to Chamberlain & Thomas, for they had stipulated for such delivery; and if .Chamberlain desired to be freed from the contract to purchase, he should have given notice [327] of his intention to repudiate, or directed Eddy to refuse to accept the order. Being joint purchasers, for whose use and under whose agreement the order was deposited with Eddy, either making use of such order, and acquiring the property by virtue of it, acted for both. The credit was given to both jointly, and the order and performance of Dow & Fowler were to both. The private agreement between Chamberlain & Thomas, by which Chamberlain was released from his agreement to operate the machine in co-partnership with Thomas, does not affect the right or remedy of Dow & Fowler. It was not an agreement with them, or made known to and approved by them. It did not operate to release Chamberlain from his liability as a purchaser; for it was not made with his vendors, nor did it relate to the purchase. There is therefore no question of partnership rights or partnership liability involved in this case, as the partnership contemplated by Chamberlain & Thomas related only' to the use of the machine after purchase; and the agreement by which Chamberlain was released from the contract to operate the machine with Thomas was personal to themselves. The consent of Dow' & Fowler was necessary to release Chamberlain, and no agreement between him and Thomas would have that effect. Chamberlain is therefore, as I think, liable in this action. The unexecuted agreement between the two Thomases and McKercher does not free him from such liability, for McKercher is not shown to have acted within the scope of his authority; but, on the contrary it appears that Dow & Fowler gave no authority to McKercher to make such agreement, and were ignorant of it. In the absence of evidence of the power and authority of the agent, we can not infer that he had authority to rescind contracts which had been executed by his principals, but remained executory on the part of their vendees. I think the judgment should be affirmed. Judgment reversed.