Binney v. Le Gal

1 Abb. Pr. 283

• Court: New York Supreme Court
• Decided: February 15, 1855
• Status: Published

Opinion

Mitchell, J.

The defendants are partners, and (so far as-the affidavits show), are indebted to. the plaintiff for moneys of his applied in the use of the firm by the concurrence of' both defendants. A summons in this action was served on Le Gal on the 20th of February, 1854, and on.Borland on the same or following day. On the 22d, Le Gal, alone, but in the name of the firm, and signing for both defendants, made'a written offer that the plaintiff might take judgment for $1000 with interest and costs. This was accepted on the 24th, and on the same day judgment was entered and execution issued; when it was discovered that Borland had assigned the stock on the 23d of the month, and that the assignee was in possession.

" Borland moved promptly to set aside the judgment and execution as against him, and this was granted, but only on the condition that he should give security to pay the amount of any recovery against him. He appeals; and the question ls,'—is the judgment regular as.against him?

.The plaintiff’s attorney says in an affidavit used on the motion, that on the twenty-third of February, he “served the -defendants with a notice of acceptance of the offer.” Borland says in his affidavit that he was informed on the 1/wemby-eigMh ■of February, that Le Gal had made the offer. This last affidavit was served on the plaintiff’s attorney, and he does not ■deny that the twenty-eighth was the first day on which Borland received notice that the offer had been made; he probably used the general terms “ he served the defendants with notice of the acceptance,” on the ground that Le Gal was regarded by him as the representative of both, and that service on him was service on both. It is to be inferred that no notice of acceptance was served on Borland.

Since this case was decided at special term, the subject of the right of one partner to bind another in a suit of law has been before the court at general terrain Everson a. Gehrman,

* decided December, 1854, and it was held that he had no such power when acting against the wishes of his co-partner, and that his implied power was only to act in suits at law according to the express or implied wish of such co-partner. Here both partners were at hand, the plaintiff or his attorney had spoken with both as to some arrangement of this action, and Borland had told the plaintiff’s attorney that he had the entire management of the business affairs of Le Gal and Borland, and that he could not then settle the debt, but that if he could raise half the debt he would, if Le Gal would raise the rest, and his counsel should approve it; (see La Bau’s affidavit). The plaintiff was thus notified that Borland was the manager ■of this matter, and so far from committing his interest in it to Le Gal, he claimed to control the business, and had his own counsel to act for him. Borland, therefore, did no act to lead the plaintiff to suppose that Le Gal might act for him, but did directly the contrary. Under these circumstances Le G-al had no power to .make the offer, except for himself, and the judgment was irregular as to Borland, and should be set aside as against him without any condition. One partner has no power to make the offer to the plaintiff to take judgment under the Code on behalf of himself and his co-partner, without some evidence from which it is to be inferred that his co-partner authorized him to make the offer, or assented to it. Where an attorney appears for both, and there is no contrivance in employing him to appear, his appearance on the record may make the judgment regular.

The order appealed from should be modified accordingly without costs.

Ante, 165.