Gates vs. A. Graham and others, 12 Wend. 53

By the Court, Nelson, J. The burthen lay upon the defendant to show that he had authority to sign and seal the instrument in question for his co-partners; and the proof should be conclusive on the point, to justify the court in turning the plaintiffs over to a new action.

Without now touching the somewhat litigated question whether an authority to seal for another resting in parol, is valid and competent for that purpose, it is sufficient to say, that no authority to seal, of any description, has been shown in this case, before the execution of the contract, nor has there been any subsequent ratification of it by the co-partners.

There was evidence of an existing authority to make the contract for the transportation of the flour, and even without any express' power, the defendant was authorized to make such a contract by virtue of the partnership, as it fell within the scope of it; but this gave him no authority to seal. Authority to seal is not to be implied from an express power to make a contract not requiring a seal; nor is it to be derived from the existence of the partnership. One partner, by virtue of it, has no power to seal for another. 7 T. R. 207. 9 Johns. Rep. 285. 1 Wendell, 326. 9 id. 68.

The implied power to one partner to act within the limits of the partnership is as complete as an express power to act in a specified case ; and if the general power does not confer authority to seal, the other cannot. If the above conclusion is correct, the suit is properly brought against the defendant, and he is personally responsible to the plaintiffs, upon the covenant. 3 Johns. Cas. 180. 13 Johns. R. 310. 2 Caines, 254. The instrument in question is in substance a deed poll, and nQ one nQt name¿ jn can bring an action upon it. 1 Salk. 197. Bull. N. P. 156. 1 Wheat. Selw. 338. 2 Bac. 64.

See also 10 Wendell, 91. A counterpart of the agreement was signed and sealed by Andrew Graham,, in a name purporting to be the name of a firm, and delivered to the defendant, at the time of the delivery of the contract declared on. These contracts, it is contended, are but one instrument in law; and as Andrew Graham showed no authority to seal, the agreements ought to be viewed as a contract between him, individually, and the defendant; and if so, the suit should have been in his name alone.

This position, I think, would have been correct, if the deed had been inter partes, and signed and sealed by each of the contracting parties. Then it would have been, in contemplation of law, an agreement solely between the individuals executing it, though in a partnership name; neither having authority to seal for their partners. But the execution of the instrument by one party only varies the remedy. The question that arises is, who are the persons named in it 1 for they are the persons with whom the defendant has covenanted, and who may maintain the action according to the above authorities.

The plaintiffs, I think, are described with sufficient certainty for id cerium est, quod cerium reddipotest. They were the persons composing the company, and were designated by the terms or language used. It is like the case of a bond or note given to the trustees or other officers of an incorporated association, where the action must be in the names of the persons thus described, the association not having any corporate name in which the suit may be brought. The case of Piggot v. Thompson, 4 Bos. & Pul. 141, illustrates the principle.

There were nineteen issues before the justice, as appears from the record in this case. Many of them issues of law, in the form of issues of fact upon which questions have been raised ; but the pleadings are so imperfect and irregular that I shall not examine them. If a party is desirous to plead specially in a suit before a justice, it should be done with more formality and precision than was pursued here, if he expects the common pleas or this court to examine and determine the case upon questions arising upon the pleadings.

We have given to the defendant the benefit of every material fact contained in his numerous pleas, the same as if such facts had been presented in a notice under the general issue, which, from the imperfection of the pleadings, is the most that he can justly claim. The court were right in permitting the instrument to be read in evidence, notwithstanding the objection growing out of the condition of the seal. The question raised belonged to the jury. After a critical examination of the facts, and direction of the court below, I am of opinion the judgment should be affirmed. Judgment affirmed.