Boardman & Gray v. Adams & Hackley

Stockton, J. The court charged the jury, that the plaintiffs must recover for pianos sold and delivered, or they could not recover at all; that if the pianos were sold to Hackley alone, and not to the firm, the plaintiffs could not recover, in this action; that there must be satisfactory proof, either that the buying and selling of the pianos was within the scope of the partnership business of defendants, or - that they jointly ordered the pianos from plaintiffs, before they can recover; that plaintiffs having sued for pianos sold and delivered, cannot recover on proof that the pianos were sent to defendants to be sold on com [229] mission, or on any other proof, falling short of proof of sale and delivery; and that the jury must examine the testimony with reference to each of the defendants separately. It is first assigned for error, that the District Court refused to charge the jury, that it was necessary for plaintiffs to show, that Adams had knowledge of the whole of the transactions, and consented thereto, (or what was equivalent thereto), before he could be made liable. It is assumed that the refusal of the court, to charge the jury as requested, was in effect saying to them, that one member of a partnership firm, without the consent of the other partner, can bind the firm in matters which are without the scope of the partnership business. The law is well settled, as claimed by defendants’ counsel, that one partner cannot bind the firm, by any contract made in the name of the firm, unless it be in a matter within the scope of the partnership dealings, or falling within the ordinary business and transactions of the firm. Western Stage Co. v. Walker, 2 Iowa, 512; Story on Partnership, section 322. Looking at all the instructions given in this case, and at the testimony contained in the record, we cannot say that the court undertook to lay down a different rule, or that there was error in refusing the instructions asked. The respective letters of Adams & I-Iackley to plaintiffs, of June 19, 1851, though signed in their individual names, were evidently written in the name and upon the business of the firm. Adams says: “your advertisement of pianos is in our paper, and your offer to us of an agency, we accept.” Attached to this, is the letter of Hacldey, in which he says: “I think you would promote your own interests, by shipping to us, a small, but select assortment of your instruments.” The jury were told, that “ they must be satisfied, that the busi- “ ness of buying and selling pianos, was within the scope of “ the partnership business, or that defendants jointly, and as “ co-partners, specially ordered the pianos, before a joint “ liability was incurred.” By this instruction, the question of fact was left for the determination of the jury, whether [230] the dealing in pianos had been made a part of the business of the iirm. And from the evidence, we think, they were authorized to infer that the defendants concurred in accepting, in the name of the firm, the agency offered them by plaintiffs, and had agreed to add to their regular partnership business, that of dealing in pianos. It is to be observed, that defendants in their letters to plaintiffs, make no stipulation as to the terms on which the pianos are to be sent to them. Nothing is said of their being sent to be sold on commission. They accept the agency, and advise plaintiffs to send on their pianos to them. In reply, the plaintiffs inform them, that they do not consign pianos to be sold on commission — they decline all such applications. They have, however*, shipped to defendants two pianos, on these terms: that they are to be at the risk of the defendants, when delivered at Albany, on the railroad or canal, and all sales are to be at defendants’ risk; that the pianos are sold to them, at the usual rates; but they agree to wait with defendants for payment, until the pianos are sold by them, charging them interest on account after four months; and that if the defendants choose to purchase the pianos “out and out,” twenty per cent, will be deducted from the invoice price, at six months credit — if for cash, a discount of five per cent, additional will be made. Upon these terms, the first two pianos were shipped to defendants. Upon notice to them of the terms of the plaintiffs, if not acceptable to them, they should have notified plaintiffs of their dissent, and their refusal to receive the pianos. Instead of this, Hackley, one of the defendants, writes to plaintiffs, from the Tribune office, September 29: “we have just effected a sale of your two pianos, at six months.” Having made the dealing in pianos a part of their partnership business, and notified plaintiffs thereof, this letter, though written and signed by Hackley alone, binds the firm. There is no expressed dissent to the terms on which the pianos were sold to them, and no unwillingness manifested to continue the business and agency on the same terms. On the contrary, they inform the plaintiffs, that [231] they “have a prospect of selling two or three more, if they had them.” In accordance with this suggestion, the remainder of the pianos charged, are shipped to defendants. Where a partnership firm, embarked in a particular business, to which their engagements are confined, and to which alone their partnership contracts extent, by mutual agreement, enlarge the sphere of their operations, and include another branch of business, the power of each partner to bind the firm by his contracts, is co-extensive with the whole business of the partnership; 'and the acts of each member are as binding on the firm, in the new branch of business in which they are engaged, as they are in the former regular and ordinary business. If Adams & Haekley agree to add the business of dealing in pianos, to their regular business of printing and publishing newspapers, the acts of each member of the firm, are binding on the other, in every thing connected with the buying and selling of pianos, and neither can object that the other partner makes contracts, or incurs liabilities, in the name of the firm, which, by virtue of the relation existing between them, shall bind them both. It was not necessary, therefore, in our view of the law and the facts, that the plaintiffs should prove that Adams had knowledge of all the transactions which passed between his co-partner and the plaintiffs, and that he consented thereto. He is presumed to consent to all the acts of his partner, within the scope of the business of the firm. The second assignment of error, is upon the refusal of the court to charge the jury, “that if the letter of Boardman & Gray does not accept the offer and terms stated by Adams, it is necessary to bring home to Adams a knowledge of the contents of the letter of Boardman & Gray. The refusal to give this instruction, was not erroneous., No offer of terms was made by Adams, in his letter to plaintiffs. He informs them that the offer to their firm, of an agency for the sale of their pianos, is accepted by defendants, and advises plaintiffs that they had better have one of their pianos in Dubuque. Having accepted [232] ' the agency proposed, and agreed to make the dealing in pianos a part of their business, as a partnership, Adams, as one of the partners, is equally and jointly with Hackley, liable for all pianos sold and delivered to the partnership firm. Even if Adams never saw or knew anything of the letter of plaintiffs, he is bound by the acts of his co-partner. Judgment affirmed.