1849. BRETTEL v. WILLIAMS. persons carrying on business under the firm of Unit & The first of these objections was obviated by the production of a letter from the defendants, who subscribed the guarantie to the plaintiffs, stating that the guarantie was meant to be given to them. Upon that proof, the letter and the guarantie together constituted a note in writing having all the parties, and sufficient to satisfy the Statute of Frauds, and to bind the defendant who actually signed it. Whether the other defendants were also bound, was a question deserving much consideration, and was reserved by my Brother Platt. It was also insisted that there was evidence on the account stated; and that point also was reserved, a verdict being directed for the plaintiffs on the first, and for the defendants on the last count, reserving both points. Mr. Keating moved to enter a verdict for the defendants on the special count, my Brother Talfourd to enter a verdict for the plaintiffs on the account stated, and cross rules were granted, which were argued at the Sittings after last Trinity Term. Upon the first question it was contended by Mr. Phipson for the plaintiffs, that this guarantie bound all the partners, because the supply of bricks by Messrs. Unit & Roberts was material to enable them to carry on the partnership contract with the Company; and that the supply of coals by the plaintiffs to Messrs. Unit & Roberts was equally material, as this was the only mode of procuring those bricks; and that, though one partner could not bind another by a guarantie for collateral purposes, he had that power where the guarantie was connected with the partnership business, and a reasonable mode of giving effect to a transaction within the scope of the partnership dealings; and he relied on the case of Ex parte Gardom (a). That one of two partners engaged in business as merchants had not, by reason of that connection alone, power to bind the other by a guarantie apparently unconnected with the partnership trade, was decided by Lord Ellenborough in the case of Duncan v. Lowndes (b), and the Court of Queen's Bench gave a similar decision in that of Hasleham v. Young (c), where the defendants were in partnership as attornies. No proof was given in either of these cases of the previous course of dealing or practice of the partners, which, it is admitted in both cases, might be sufficient to prove a mutual authority; nor was any evidence given of the usage of similar partnerships to give such guaranties; nor was there any of a recognition and adoption by the other partners, which would have the same effect. The case of Sandilands v. Marsh (d) proceeded on (a) 15 Ves. 286. (b) 3 Camp. 478. (c) 5 Q. B. 833. 1849. BRETTEL บ. WILLIAMS. 1849. BRETTEL v. WILLIAMS. the latter ground. In the present case, no evidence was given to shew the usage of the defendants in this particular business, or of others in a similar business; nor was there any evidence of the sanction by the other defendants of the act of their copartner; for a witness, who was called to prove the latter fact, would not, on cross-examination, swear that he was authorised by them to write a letter, which, if proved to have been so written, would have been sufficient. Simply as railway contractors, they could not have any such power. The only question then is, whether they had it in this particular case, in consequence of its being a reasonable mode of carrying into effect an acknowledged partnership contract. We think that Mr. Phipson's position cannot be maintained. One partner does communicate to the other, simply by the creation of that relation, and as incident thereto, all the authority necessary to carry on their partnership in its ordinary course, (see Hawtayne v. Bourne (a)), and all such authority as is usually exercised by partners in the same sort of trade, but no more. To allow one partner to bind another by contracts out of the apparent scope of the partnership dealings, because they were reasonable acts towards effecting the partnership purposes, would be attended with great danger. Could one of the defendants in this case have bound the others by a contract to lease or buy lands, or a coal mine, though it might be a reasonable mode of ef fecting a legitimate object of the partnership business? Our opinion is, that one partner cannot bind the others in such a case, simply by virtue of the partnership relation. In the case of Ex parte Gardom this point was not fully discussed, but given up by Sir S. Romilly, who had two other objections to the guarantie, on which he could rely, and on one of which he succeeded. Besides, we are not sufficiently informed by the report, whether there might (a) 7 M. & W. 595. not have been some peculiar circumstances in the case which caused the abandonment of that point. We do not think that is an authority sufficient to establish the doctrine now contended for. We think, therefore, that the defendants' rule to enter a verdict on the first count must be made absolute. The rule on the part of the plaintiffs to enter a verdict for them on the account stated cannot be supported, because there was no evidence of an admission by the defendants, who did not sign the guarantie. That rnle must be discharged. Rules accordingly. 1849. BRETTEL v. WILLIAMS. CHERRY V. HEMING & NEEDHAM. THIS was an action of covenant on an indenture, dated the 31st of March, 1836, whereby the plaintiff assigned certain letters patent to the defendants, who covenanted to pay the plaintiff 8407., by instalments extending over several years, subject to a proviso, that if, at the expiration of twelve months from the date of the indenture, the defendants should not approve of the working of the patent, and should give notice of their disapprobation, and of their intention to sell the patent, then the payment of the first instalment should be suspended; and if, having given such notice, the defendants should within six months sell the Dec. 5. The plaintiff by indenture assigned letters patent to the defendants H. & N., who cothe plaintiff a certain sum by venanted to pay instalments, ex tending over several years; provided, that if, at the ex piration of twelve months from the date of the indenture, the defendants should not ap prove of the patent, and should give notice of their disapprobation, and of their intention to sell the patent, then the payment of the first instalment should be suspended; and if, having given such notice, the defendants should within six months sell the patent, the covenant should cease. The deed was executed by N., but there was no signature of H., but only a seal for him in the usual way. H. & N. attempted to work the patent, but, being dissatisfied with it, sent the plaintiff a notice, signed by both, referring to the deed, and in the terms of the proviso:-Held, that the contract having been performed on one side within a year, the case was not within the 4th section of the Statute of Frauds, 29 Car. 2, c. 3, inasmuch as that enactment applies only to contracts not to be performed on either side within the year. Semble, that an agreement by deed is not within that statute. Semble, also, that, if the case were within the statute, the notice was a sufficient note or memorandum to satisfy its provisions. 1849. CHERRY บ. HEMING. patent, then the covenant should cease and determine (a). The defendants pleaded non est factum. At the trial, before Platt, B., at the Middlesex Sittings after Easter Term, 1849, it appeared that the defendant Needham had executed the deed, and there was the signature to it of all the parties, except that of the defendant Heming. There was, however, a seal at the foot of the deed for each party, being the seal ordinarily used in the office of the plaintiff's attorney who prepared the deed, and who had attested the execution of the defendant Needham. The deed was produced out of the custody of Heming. The defendants had endeavoured to work the patent, but, being dissatisfied with it, sent the following notice in the handwriting of the defendant Heming, and signed by both the defendants: "In pursuance and by virtue of a proviso in that behalf, contained in an indenture bearing date the 31st of March, 1836, and made between Elizabeth Cherry of the first part, George Wheldon of the second part, John Ratliff of the third part, and the undersigned Dempster Heming and Joseph Smith Needham of the fourth part, We, the said Dempster Heming and Joseph Smith Needham, do hereby give you notice that we do not approve of the working and exercising of the letters patent and invention assigned by the said indenture to us; and we do further give you notice, that it is our intention bonâ fide to sell or otherwise duly dispose of the said letters patent and premises, within six calendar months after the date of this notice, in any manner, to any person or persons willing to purchase the same, for the best price in money that can be reasonably obtained for the same; and we do further give you notice, that we shall pay, retain, and apply the money to arise from such sale in manner directed in and by the said indenture." (a) See the declaration, 2 Exch. 557. |