the plaintiff. It appeared on the trial that the defendant Coleman purchased of Willoughby the lease of a farm, and also certain stock, crops, fixtures, etc., on the farm, the price to be paid in bills at three months. A written agreement to that effect was entered into by Willoughby and Coleman, and immediately thereafter the defendant Dower became a party to the agreement, with Coleman. Subsequently Dower, without the knowledge or consent of Coleman, accepted the bills in suit for himself and Coleman, for a part of the price of the lease and property thus purchased of Willoughby. It was argued for the plaintiff that the defendants were partners in carrying on the farm, and, the bills having been accepted for a debt due from the firm, the acceptance by one partner for the firm bound both partners. It was held that, this being a nontrading partnership, Dower had no authority to accept the bills for Coleman, although drawn for a firm debt, and that Coleman was not liable on such acceptance. Holroyd, J., said: "I am of opinion that the nonsuit was right. Dower had no authority in law to accept these bills for the original purchase of the stock on the farm. The transaction was not a matter of trade, and did not warrant the acceptance without express authority."

In McCrary v. Slaughter (1877) 58 Ala. 230, the defendant was a member of a partnership for planting and cultivating land, and it was held that, the business being noncommercial, there was no implied authority on the part of the other member to bind the defendant on a promissory note given for the purchase price of three mules.

So, in Tanner v. Hyde (1892) 2 Colo. App. 443, 31 Pac. 344, the defendant was a member of a partnership for the purpose of running and operating a farm, and while engaged in this undertaking the other members of the firm bought a harvester, and gave in payment a promissory note bearing the names of all the partners. The court held that the defendant was not liable on the note, saying: "Nothing is more clearly settled in the law than that one partner in a nontrading partnership cannot bind

his partner by a note unless he has express authority to execute it, or the execution is necessary to the transaction of the partnership business, or there be proof of some custom in that class of trading from which the law implies the authority."

In Ulery v. Ginrich (1871) 57 Ill. 533, it appeared that the appellant was a partner in a farming enterprise, and his copartner gave the firm's promissory note for money borrowed from the plaintiff Ginrich, a part of which money was applied to the payment of debts of the firm, and the remainder applied to the copartner's private account. It was held that the appellant was not bound by the act of his copartner, and was not liable on the note, the court saying: "In ordinary commercial partnerships each partner has undoubted authority to buy and sell goods belonging to or for the use of the partnership, or ordinary business thereof; each partner may pledge the partnership property, or borrow money for partnership purposes, and draw, negotiate, accept, or indorse bills of exchange and promissory notes and checks, and other negotiable securities, or any other acts which are incident or appropriate to such trade or business, according to the common course and usages of such trade and business; but the same rule does not always prevail in all other sorts of partnerships, or in such as are of a special and peculiar nature. Thus, if a partnership is organized for mining or for farming purposes, the directors or active agents thereof will not, as incident thereto, possess a power to draw or accept bills, or to draw or indorse notes for the company. In such cases there must be some proof that an express authority is given for this purpose, or that it is implied by the usages of the business or the ordinary exigencies and objects thereof. Story, Partn. §§ 102, 126; 3 Collyer, Partn. chap. 1, § 2, p. 269." However, it should be noted that in that case the partners had expressly agreed that neither of them should have authority to execute notes or other evidences of indebtedness in the name of the partnership.

In Cooper v. Nelson (1891) 12 Ky.

L. Rep. 890, it appeared that the defendants were members of a farming partnership, and one of them, without the knowledge of the other, borrowed money for his own individual use, and not for partnership purposes, signing the firm name to bills of exchange. It was held that there was no implied authority by which the one partner could so bind the other, and that in the absence of any proof that the money was borrowed in the necessary course of the firm's business, or that borrowing money was the usage and custom of that particular branch of the business, or that the partner who borrowed the money had express authority from the other, the firm was not liable.

In Benton v. Roberts (1849) 4 La. Ann. 216, where one of the members of a planting partnership executed a note in the firm name without express authority from the other member, obtained the signature of the plaintiff as surety, and, after discounting the note, applied the proceeds to the use of the firm, it was held that the plaintiff, who had paid the note as surety, could not recover against the partner who did not sign the note.

In Davis v. Richardson (1871) 45 Miss. 499, 7 Am. Rep. 732, wherein the defendants in error sought to enforce an agricultural lien against the plaintiffs in error, it appeared that the latter were partners in the production of crops, and it was held that, it being a nontrading partnership, one member

thereof had no authority to bind the other by borrowing money and executing promissory notes, mortgages, or other securities, unless it was necessary for the business, and the transaction was usual and ordinary in such a business.

In Prince v. Crawford (1874) 50 Miss. 344, it was held that where one member of a planting partnership gives the firm note without the express authority of the other member, the partner who does not sign is not bound by the act of his copartner, since in noncommercial partnerships neither partner has the implied right to bind the other, except by express authority, or unless such authority can be inferred from the usage and custom of the business.

In Hunt v. Chapin (1872) 6 Lans. (N. Y.) 139, it appeared that the defendant was in partnership with another in the mercantile business, but at the same time they were conducting a cotton plantation by a separate and distinct agreement. The court held that the latter was a nontrading partnership, and the defendant was not liable on a promissory note given by his copartner.

In the reported case (GORDON V. MARBURGER, ante, 369) it is held that one member of a partnership, formed for the purpose of growing potatoes, cannot bind the partnership by making a promissory note and giving as security therefor a chattel mortgage on the growing crop. R. G. R.

V.

Messrs. Roberts & Skeel, for appellants:

Defendants had a right to request the plaintiff to leave the store, and to use sufficient force to eject her.

Howell v. Winters, 58 Wash. 436, 108 Pac. 1077; Austin v. Metropolitan L. Ins. Co. 106 Wash. 371, 6 A.L.R. 1061, 180 Pac. 134.

Ringer & Mueller are not liable under the law in any event.

2 Hilliard, Torts, 524; Wright v. Wilcox, 19 Wend. 345, 32 Am. Dec. 507; Linck v. Matheson, 63 Wash. 596, 116 Pac. 282; Williams v. Pullman Palace Car Co. 40 La. Ann. 87, 8 Am. St. Rep. 517, 3 So. 631; Chase v. Knabel, 46 Wash. 488, 12 L.R.A. (N.S.) 1155, 90 Pac. 642; Fairbanks v. Boston Storage Warehouse Co. 189 Mass. 419, 13 L.R.A. (N.S.) 422, 109 Am. St. Rep. 646, 75 N. E. 737; Goodlow v. Memphis & C. R. Co. 107 Ala. 233, 29 L.R.A. 729, 54 Am. St. Rep. 67, 18 So. 166; Stephenson v. Southern P. Co. 93 Cal. 558, 15 L.R.A. 475, 27 Am. St. Rep. 224, 29 Pac. 234; Brown v. Boston Ice Co. 178 Mass. 108, 86 Am. St. Rep. 470, 59 N. E. 644; Baker v. Kinsey, 38 Cal. 631, 99 Am. Dec. 439; Johanson v. Pioneer Fuel Co. 72 Minn. 405, 75 N. W. 719, 4 Am. Neg. Rep. 409; Smith v. Memphis & A. C. Packet Co. Tenn. 1 S. W. 104; Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727; Meehan v. Morewood, 52 Hun, 566, 5 N. Y. Supp. 710, affirmed in 126 N. Y. 667, 27 N. E. 854; Benton v. James Hill Mfg. Co. 26 R. I. 192, 58 Atl. 664, 17 Am. Neg. Rep. 128.

Messrs. Gay & Griffin, for respondent:

Defendants Ringer & Mueller are

liable.

2 R. C. L. 573; Chase v. Kinabel, 46 Wash. 484, 12 L.R.A. (N.S.) 1155, 90 Pac. 642; Linck v. Matheson, 63 Wash. 596, 116 Pac. 282; Cunningham v. Seattle Electric R. & P. Co. 3 Wash. 471, 28 Pac. 745; Dixon v. Northern

P. R. Co. 37 Wash. 310, 68 L.R.A. 895, 107 Am. St. Rep. 810, 79 Pac. 943, 2 Ann. Cas. 620; Beilke v. Carroll, 51 Wash. 395, 22 L.R.A. (N.S.) 527, 130 Am. St. Rep. 1103, 98 Pac. 1119; George v. Carstens Packing Co. 91 Wash. 637, 158 Pac. 529; De Leon v. Loyhof Fish Products Co. 104 Wash. 337, 176 Pac. 355; Ecuyer v. New York L. Ins. Co. 107 Wash. 411, 181 Pac. 871, 107 Wash. 423, 186 Pac. 327.

The servant may go beyond the strict line of his duty, and authority will not relieve the employer.

Tillar v. Reynolds, 96 Ark. 358, 30 L.R.A. (N.S.) 1043, 131 S. W. 969; Bergman v. Hendrickson, 106 Wis. 434, 80 Am. St. Rep. 47, 82 N. W. 304; Rogahn v. Moore Mfg. & Foundry Co. 79 Wis. 573, 48 N. W. 669; McDonald v. Franchere Bros. 102 Iowa, 496, 71 N. W. 427; Schmidt v. Vanderveer, 110 App. Div. 758, 97 N. Y. Supp. 441; Letts v. Hoboken R. Warehouse & S. S. Connecting Co. 70 N. J. L. 358, 57 Atl. 392.

Even where the master owes no duty to the person injured, the authority to use force may be implied from the nature of the employment, so as to render the master liable, even though the servant go beyond the necessity of the situation and use more force than is necessary.

Winoker v. Warfield, 136 Ga. 742, 71 S. E. 105; West Jersey & S. R. Co. v. Welsh, 62 N. J. L. 655, 72 Am. St. Rep. 659, 42 Atl. 736, 5 Am. Neg. Rep. 660; Exposition Cotton Mills v. Sanders, 143 Ga. 593, 85 S. E. 747; Fields v. Lancaster Cotton Mills, 77 S. C. 546, 11 L.R.A. (N.S.) 822, 122 Am. St. Rep. 593, 58 S. E. 608; Memphis Street R. Co. v. Stratton, 131 Tenn. 620, L.R.A.1915E, 704, 176 S. W. 105.

Ringer & Mueller are liable because they ratified and adopted the act of Pavlik.

Cunningham v. Seattle Electric R. & P. Co. 3 Wash. 471, 28 Pac. 745.

Tolman, J., delivered the opinion of the court:

Respondent, as plaintiff, brought this action against the appellants Ringer & Mueller, as proprietors, and against appellant Pavlik, as manager, of the Pacific Meat Company, alleging that, while in the store owned and conducted by appellants on lawful business, she was assaulted by appellant Pavlik. From a judgment for $200 in favor of respondent and against all three of the appellants, after a trial before the court sitting without a jury, this appeal is prosecuted.

The facts, so far as necessary to be stated here, as we gather them from the record, are substantially as follows: Respondent testified in chief to the effect that she ordered a pound of fish by telephone from appellant's store; that when her order came she paid for it and unwrapped the parcel, and the odor from the fish was such that she did not want it; that she telephoned to the store and said, "The fish is not fresh; I do not want it," and was answered, "All right; bring it back;" and that immediately a man's voice sounded over the telephone, and after she had repeated her complaint he said: "We don't want your trade, and you need not come here any more." Respondent thereupon in person went to the store with the fish for the purpose of returning it, gave the fish to the cashier with the remark that it was not fresh, received back the 20 cents she had paid for it, and thereupon the manager, Pavlik, who was standing near, said: "We don't want any more of your trade. We would like to have you keep away from this store."

She further testified as follows: I didn't say anything for a moment, I was so amazed, and then I said to him that the fish was not fresh, that I had returned it, and that was not any reason to practically order me out of the store, because I had brought it back. I brought it back within practically two hours

spoke in a loud, ugly tone, and said to me repeatedly: "You can keep out of this store." . . . I then said, “I will not leave this store until I get ready, and I will come here to trade if I choose." I said, "I have a perfect right to return anything that is not good, and this is not good to eat," and I said, "I should have sent it to the health department; I regret now that I did not." He then said, "If you don't get out of this store, I will put you out; I will throw you out." That was the expression, and I am not accustomed to having anyone speak to me in that way. I stepped toward him then. voice was loud.

His

Q. Were other people in the store?

A. There were not very many people in the store at that time.

Q. Were there other people, customers, there?

A. Yes; there were a few.
Q. Go on.

A. And I stepped nearer to him, because I spoke quietly, and I said— I told him not to dare to touch me, not to put his hands on me; that I would not leave the store until I was ready; I had done nothing to be ordered from a place like that; I was never spoken so to in my life. Q. Then what did he do?

A. He caught me by both hands and pushed me backwards. One of his hands was covered with the grease from the meat and blood.

Q. Where did he grab hold of you?

A. On both arms.

Q. And did he put you out of the store?

A. He didn't push me out of the door. He pushed me back quite a way; I don't know how far.

Q. After he pushed you, did you go out?

A. No; not immediately.
Q. Well, did you go out?
A. Afterwards I did; yes.
Q. How soon afterwards?

A. About five minutes afterwards.

Upon cross-examination respondent further testified:

His attack upon me certainly occurred in less than ten minutes after I was there, because I refused to leave; I refused to turn and run, and I refused to go backward at his order.

Q. Yes; you said that you absolutely refused to go out of the store, and you absolutely refused to go backward.

A. Yes, sir; he had no occasion to do that.

Q. And you said here in answer to Judge Gay, "I would not have stepped back there for anything?"

A. And I would not have done it. Q. You say now you would not have stepped back there?

A. Yes.

Q. And you say now, "I also stepped toward him?"

A. He was speaking in a very loud, ugly tone so that Mr. Keene could hear him, this postman who is a witness, and I stepped near enough to him to speak quietly, because I don't shout and I don't yell; I stepped near enough to him to speak quietly, only for that.

Q. When Mr. Pavlik finished his telephone conversation, after he had told her to give the lady the money back, didn't he go back through that little aisle, and back behind the block and go to work?

A. I don't remember exactly that; he was very near me all the time, and talking.

Q. Yes; because you kept following him.

A. No; I didn't keep following him; I stepped toward him to say that I would not be ordered from the store, and to say that the fish was not fresh.

Q. You followed him back there where

A. No; I did not.

Q. where no patron of the store or the public has any right to be, didn't you?

A. No; I stepped toward the counter; he stepped behind the counter, and I stepped toward it.

Q. I say he went behind the counter and went to his work.

A. I had a right to step to the counter, did I not?

Mr. Keene, produced as a witness on the part of respondent, whose testimony bears the impression of fairness, described what he saw as follows:

Q. Now, Mr. Keene, what was it on that day that first attracted your attention?

A. Well, there was-when I came in there was rather loud talk; there seemed to be a kind of mutual misunderstanding among a couple of

A. Yes; she was talking rapidly, but not very loud. I didn't understand what she said. I don't remember anything that the lady said. He was telling her to leave the place and not come back; that they didn't want her trade. I heard him speak to the cashier and tell her to return the money. This has been some time ago, Mr. Gay, and I don't remember all these things distinctly.

Q. What did you next hear? Did she get her money? Did you see her get her money apparently?

A. Apparently; yes. I am not positive.

Q. Then what did you hear, and what took place, and what did you see?

A. I didn't watch them continuously. I was in a hurry, and wanted to get an order myself. The next that I remember, he told her repeatedly to leave the place, and the next thing that I remember I turned around, and they were just about in this position (indicating), and he had taken her by the arm or shoulder and shoved her toward-in this direction. Yes; toward the