Titcomb v. James

Mr. Presiding Justice Waterman delivered the opinion of the Court. The only connection which the defendant, Titcomb, .seems to have had with this affair is, that as one of the firm of Titcomb & Pratt, he was interested in the sale of the goods, and in the mortgage and notes given therefor; and being informed by the collector of the firm that Mrs. James complained that some of the goods sold to her were of an inferior quality, and that she insisted such inferior goods should be taken away and be replaced with goods of the quality she claimed to have purchased, he told one of the employes of the firm, Mr, Brewerton, to go to Mrs. James and get the furniture, at the same time giving to him the chattel mortgages thereon. While it is true that partners are, in respect to the business in which they are engaged, agents for each other, and, therefore, one partner may be liable for the tortious acts of another done in the usual course of business of the firm, yet it is not the case that all the members of the partnership are liable to be punished with vindictive damages for the wanton acts of one partner, although done in prosecution of the business of the firm. The agency of a partner extends to forwarding the interests of the firm in the ordinary and usual manner, and does not extend to the doing of wanton, malicious or cruel acts, when such is not the ordinary or usual course employed by the firm. Under the chattel mortgage given by Mrs. James, default having been made in the payment of the note secured thereby, the plaintiffs in error had the right to take possession of the mortgaged goods, if they could do so in a peaceable manner, and neither the partnership relations existing between Mr. Titcomb and Mr. Pratt', nor the directions given by Mr. Titcomb to Mr. Brewerton to go and get the furniture, are, under the evidence presented by this record, to be construed as an authority from him to commit a breach of the peace, or to assault and beat Mrs. James with their fists or otherwise. Mr. Brewerton certainly seems not to have understood that he had any such authority from Mr. Titcomb, as after arriving at the house, at the request of Mrs. James, before proceeding to take possession of any of the mortgaged property, he sent for Mr. Pratt, and waited until his arrival before taking any further action. It is argued that what Mr. Pratt and Mr. Brewerton did was by them done in an attempt to get possession of the furniture, as it is said Mr. Titcomb had directed, but as we have before said, Mr. Titcomb’s directions, proper in themselves and entirely in accordance with his lawful fights, are not, under the evidence here presented, to be construed as a direction or authorization to commit a breach of the peace in order to carry out his desires. Surely it will not be contended that if either Mr. Brewerton or Mr. Pratt had, in order to get possession of this furniture, murdered Mrs. James, that Mr. Titcomb could have been held, upon the evidence here adduced, guilty as an accessory before the fact to such crime. It is also urged that as a portion of the goods were taken away, and as the plaintiff below testified that there was no settlement under which this was done, and that a part of the goods so taken away had never been returned, that therefore the defendant below, Titcomb, must be held to have approved of all that was done in getting the goods, since a portion of them were retained. If this were the case, still the defendant, Titcomb, would not be liable for vindictive damage, but only for the real damage done by the taking away of such goods as were not returned. As a rule, partners ate in general bound by the contracts of each other when made in the scope of the firm business, but they are not generally answerable for the wrongs of each other. In general, acts or omissions in the course of the partnership trade or business, in violation of law, will implicate those only who are guilty of them, and a willful tort of one partner is not in and by force of the partnership alone, imputable to the firm. If one partner maliciously prosecutes a person for stealing partnership property, the other members of the firm are not answerable unless they are in fact privy to the malicious prosecution. Colyer on Partnership, Sec. 457; Lindley on Partnership, Book 2d, Chap. 1, Sec. 4; Gilbert v. Emmons, 42 Ill. 145; Grund v. Van Vleck, 69 Ill. 478; Rosecrans et al. v. Barker, 115 Ill. 331; Becker v. DePree, 75 Ill. 167; Partridge v. Brady, 7 Ill. App. 639; Sutherland on Damages, Vol. 1, page 76, and also Vol. 1, page 877; Sedgwick on Damages, Vol. 1, page 539; Wilson et al. v. Turnman, 6 Mann. & Grang. 236. Here, according to the testimony of Mrs. James, both Mr. Pratt and Mr. Brewerton made wanton and malicious assaults upon her, which it is not shown that Mr. Titcomb either directed, approved, or had any knowledge of until the bringing of this suit. Mr. Pratt and Mr. Brewerton deny having made any such assault. Admitting, however, that in this respect they do not tell the truth, and that the plaintiff below is to be believed, it is manifest that what they did in this regard was not done in the interests of the firm of Mr. Titcomb or by direction of either, but for their own wanton and wicked purposes. The plaintiff below also testified that she tendered to Mr. Pratt in money more than enough to satisfy all claim which the firm had upon the goods. After this Mr. Brewerton and Mr. Pratt assaulted her. Mr. Titcomb’s only interest in the goods was through a lien which the firm had thereon to secure what was due to it. If, therefore, Mr. Pratt, when the amount due the firm was tendered to him, instead of taking it, as Mr. Titcomb’s, as well as the firm’s interest required, refused to do so, and, as Mrs. James testifies, after making a wanton and willful assault upon her, carried away a portion of the goods, Mr. Pratt in so doing was neither prosecuting the business of the firm nor acting in the interest of Mr. Titcomb, or doing anything that by virtue of the partnership he hM either authority or was an agent to do in the prosecution- of the firm business. The instructions of the court authorizing the finding of punitory damages against the defendants below ought not to have been given. The remarks of the court to the effect that the witnesses for the defendants below had testified that an assault was made upon Mrs. James were highly prejudicial to the defendants below. An examination of the record does not show that the witnesses for the defendants below did more than, in connection with the testimony of the plaintiff, to testify to that from which an inference might be drawn that they did not deny that an assault was made upon the plaintiff. The judgment of the Superior Court is reversed and the cause remanded.