Cadwallader v. Kroesen

G-oldsborough, J., after stating the facts of the case in substance as on pages 200-202, ante, delivered the opinion of this Court. After a careful review and consideration of the statement and testimony, we think that the Judge of the Circuit Court was authorized to infer that the agreement between Sewell and Moore for the sale and purchase of the cattle mentioned in the statement, was for the private benefit of Sewell, and that it was made without the knowledge and consent of Sewell’s co-partners.' Though the evidence shows that the groceries which Moore had obtained, and was about to obtain, belonged to the firm, yet the payment for them, by delivery of the cattle to Sewell alone, was a transaction so foreign to the usual course of [205] dealing, that this circumstance should have led Moore to inquire and inform himself whether the other members of the firm assented to the agreement, or that the value of the cattle had enured to their mutual benefit. There is no evidence of either. (Decided October 31st 1864.) The course of dealing between the appellant, through his agent, Moore, and the firm for several years before the agreement for the cattle, had been of that character which would lead the parties to infer that the bill of groceries (the subject of this controversy) was to be delivered and paid for in like manner as before. There is no necessity to impute fraud to Sewell, or collusion between him and Moore. Sewell, it may be reasonably concluded, intended to charge himself with the value of the cattle on the books of the firm, and Moore, in ignorance of the law, may have believed that Sewell had authority to bind the firm by such an agreement. The mutual responsibilities of partners, and the power of one partner to bind his co-partners in the usual routine of partnership transactions is too well established to require the citation of authorities; but where an agreement is made by one partner out of this routine, the circumstances attendant upon the transaction would in an ordinary trial, be properly submitted to the jury: in this case, the province of the jury being conferred upon the Judge of the Court, we see no just reason to disturb the conclusion which he deduced from the facts submitted. The judgment must be affirmed. See 4 H. & McH., 350. 6 Md. Rep., 8. 11 Barbour's S. C. Rep., 312. Collyer on Part., secs. 483, 501. 10 Wendell, 461. Judgment affirmed.