Day v. Lafferty

4 Ark. 450

• Court: Supreme Court of Arkansas
• Decided: July 15, 1842
• Status: Published

Opinion

By the Court,

Dickinson, J.

Although any question which may have arisen upon the demurrer, is waived by the subsequent pleading to the merits, we think it proper to remark,'that, in our opinion, the obligation is properly described in the declaration. The plaintiffs in error are charged with having executed it under their joint seal, in the name of the firm, Day, Williams & Co.

It is, as a general rule, true, that one partner cannot bind another’ by deed, without his consent; but the authorities fully establish the principle, that a signature and sealing, in the name of the firm, with a single seal, is good, and binds all the partners who are present, or assent to the execution. If none but the executing partner assent, it is still good as to him. 4 Mason, 232, and note thereto. The plea of payment necessarily admits the execution of the deed by all the partners.

The cáse of Crary vs. Ashley & Beebe, referred to by the plaintiffs in error, differs essentially from the one now before us, as to the manner in which the question of striking out pleas is presented. In that case, the defendants excepted to the opinion of the Court, and rested upon their bill of exceptions, duly signed, sealed, and set out upon the record. But here the party, by not making the plea stricken out a part of the record by bill of exceptions, acquiesced in the decision of the Court. The plea so stricken out forms no part of the record, and should have been wholly omitted, in the transcript. This objection, therefore, to the striking out of the plea, comes too late, and cannot now be considered.

The only remaining question for our consideration is presented by the demurrer to the plea of tender. We consider the law well settled, that, if a party covenants to pay in specific articles, he must meet his contract at the time and in the manner specified, Tender cannot be made after the day, unless the damages are capable of being reduced to certainty, by computation; nor can it be pretended that it is possible to do so, id this instance, without the intervention of a jury. Even if a party failed to make a defence, a writ of inquiry must issue, to ascertain the damages. It is, therefore, not one of those cases in which the doctrine of tender is applicable.

Judgment affirmed.