Clippinger v. Starr

Grant, J. (after stating the facts). Plaintiffs’ evidence does not support the theory of the special count in their declaration. The money paid to defendant by Harvey Clippinger was not an advance or a loan. It was not paid to him upon any promise, express or implied, to pay it back. The check was given as a payment for the money due from A. J. Clark & Co. to defendant by Mr. Clippinger, who was in charge of A. J. Clark & Co.’s business at Lansing, and who was their agent, and not in any sense the agent of defendant. The rule is well established that one copartner cannot use the partnership funds in payment of the individual debt of a partner, or the debts of others, except by the assent, express or implied, of all the partners. Plaintiff Charles almost immediately had knowledge of the issue of the firm check to the defendant, and its payment. It was [466] Ms duty to move promptly in repudiating the transaction. He failed to do so for nearly a year. By this course he must be held to have ratified it. Silence for so long a time, with full knowledge of all the facts, is a ratification, and precludes the partnership from suit to recover the money. Undoubtedly Harvey gave defendant the- firm check in payment, supposing that his principals, Clark & Co., would promptly reimburse him. They did promptly send him their check in payment, but they had no funds in bank to meet it, and the check was protested. If Harvey or Charles had moved seasonably in notifying defendant of the protest, and that they should hold him responsible for the unauthorized payment by Harvey, defendant w'ould undoubtedly be liable. Casey v. Carver, 42 Ill. 225; Marine Co. v. Carver, Id. 66; Johnson v. Crichton, 56 Md. 108; Story, Partn. § 133. Defendant was entitled to prompt notice of repudiation by the plaintiffs, in order that he might proceed seasonably against his debtors, Clark & Co. Judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long., J., did not sit.