Bentley vs White, Assignee, 3 B. Mon 263

Chief Justice Eobertsom delivered the opinion of tlie Court.

On the 8th of August, 1839, James Bentley, who owned 39 mules, two horses and two mares, which he desired to send to the Southern market, entered into a special partnership with John Watts, on the following terms, as expressed by a written memorial signed by each of them, that is, that Watts was to take that stock to the South and sell it, and account to Bentley for $70 on each head, and was to be entitled to one half of the profits over $70 for each head — and also, that as they had purchased “other stock,” and might “purchase some few more,” they would be equal partners in the stock they had so “jointly purchased,” or might purchase.

They afterwards bought a few horses jointly, each being present at the purchase, and signing his own name to each bond given for the price. About the middle of August, the purchases were closed, and Bentley told Watts that they would buy no more stock, and that Watts must not sign his (Bentley’

s) name to “any paper.” About the 21st of August, Watts started with the drove for the Southern market; and, on his way about 30 miles, he bought some other horses from Thomas Robinson, and executed a note for $185 therefor, signed “J.

Watts & Bentley.” Bentley being afterwards sued on that note by White, as assignee, pleaded non est factum, and on the trial upon the issue on that plea, the Circuit Court instructed the jury in substance and effect, that if they believed the foregoing facts, they must find for the plaintiff in the action, and verdict and judgment were accordingly rendered against Bentley for the amount of the said note.

As there was no proof of a recognition by Bentley of that note, or of the purchase which was the consideration ■of it, or even of the fact that the horses bought by Watts from Robinson were appropriated to the joint use of Bentley and himself, or in any way accounted for with Bentley, it seems to this Court that the peremptory instruction, on the facts as proved, was erroneous. 1.

We are strongly inclined to the conclusion, that the contract between Bentley and Watts did not authorize either of them to bind the other by the purchase of horses, even before the drove was started for the South, but should be construed as meaning, as to future purchases, that if the parties should jointly determine to make other purchases, and should in fact jointly make any, they should be partners in any stock which might be so purchased; and the conduct of the parties tends to fortify that

interpretation. A limited partnership may be formed to buy for a single adventure, (as a drove of stock to a southern market,) which if done, the power ot one partner to bind the other by additional purchases, ceases when the drove is started. The true legal effect of the written agreement may, however, be material in this case, only to show that the Court erred in giving the peremptory instruction, for whatever may have been the effect of it as to the parties inter se, there was some evidence that they had held themselves out to the world as partners in a drove to be bought and exported to the South. 2.

But whatever may be the true construction and effect of the written, or of the implied agreement, as to future purchases for exportation, it cannot, as we think, be ■extended beyond purchases prior and preparatory to the starting of the drove for the distinct market, or of such others afterwards as might be useful for insuring an advantageous sale of that drove. In its utmost constructive latitude, the contract contemplated no other than a limited partnership, for the purchase of a drove to be carried to -the South and there sold.

And if, antecedently to the completion of the drove at home, and the starting of it for market, each partner had an implied authority to make purchases for constituting that drove, and thereby to bind the other partner by such contracts ; yet as soon as they had determined that the drove was complete, and had started it to the South for sale, the special partnership as to purchases ceased, excepting perhaps ■only so far as might happen to become necessary for selling advantageously the drove so completed and started— as for example, by buying a horse to match one of the drove.

We cannot believe, without any extraneous evidence of such an agreement or custom, that in such a case one partner would, as a matter of law, have a resulting authority to purchase any where on the way to market, or at any time before his return home, another drove, or as many other horses as he might choose to buy.

The object of such a special and temporary partnership, clearly limits the right to purchase, and negatives any implied authority to make general purchases after the ■contemplated drove, (to which alone the contract of partnership applied) had been completed at home, and exported or started for the place of sale.

A limited partnership is formed to buy a drove of horses and mules for the south’rn market; they are purchased and started with one of the partners, who after going thirty miles on his journey, buys two other horses and executes the partnership note, nothing further appearing, on these facts alone it is error to instruct the jury that both are bound.

If two persons enter into a limited partnership to export a cargo of ice from Boston to Canton, we could not believe, that after they had completed the cargo at home, and their ship had left the home port for the destined market, one of the partners, without the express authority of the other, could bind him by a purchase of other ice on the ocean; or that one partner, in a single adventure of exporting tobacco to New Orleans, would have an implied authority to buy tobacco on the Mississippi or Ohio river, on his way to Orleans with the cargo jointly bought and started for market.

Wherefore, unless there had been conclusive proof of an understanding in this case, or of some local usage to the contrary, or of a ratification, express or implied, by Bentley, the jury were not, in our opinion, bound to presume that Watts had authority to bind Bentley, by executing the note to Robinson, and consequently, we are of the opinion, that the peremptory instruction by the Court, and consequently, the verdict and judgment, must be deemed erroneous.

Without the proof of the declaration byWatts, since his return from the South, that the note to Robinson was given for horses, the law would have implied that it had been given authoritatively for some consideration within the scope of the partnership, and therefore Bentley’s counsel was undermining his plea by objecting to the competency of that declaration, which was the only evidence of a consideration not embraced by the terms and objects of the partnership. > It is, we think, a sound general rule, that after dissolution, one of the former partners cannot, by his acknowledgments or assertions, impose an obligation on his late co-partner: Bell vs Morrison, (1 Peters, 373.) But whether that rule should be applied to the facts of this case, we need not now determine, because the determination of it either way, could not affect the question of reversal, or any other question that will probably arise on another trial.

Moretead fy Reed for appellant: M Henry for appellee. (Judge Ewing dissenting) judgment reversed and cause remanded for a new trial.