The opinion of the court was delivered by
Gibson, C. J.
The law of partnership is part of the law merchant, which has respect exclusively to the business of commerce : and as scaled instruments do not ordinarily enter into it, the authority of a partner being limited to the scope of the trade, is held to be incompetent to the execution of them- There may, indeed, be a partnership to carry on a business not purely commercial; still, however, the authority of the partners is regulated by the usages of trade. The measure of this authority allowed by the law merchant, being graduated to the exigencies of commerce by experience, is the wholesome and the convenient one; nor ought we, by an apparent hardship to be drawn into a desire to enlarge it. Undoubtedly the partnership had the benefit of the plaintiff’s wood; but he thought fit to furnish it on separate account; and even if he supposed in -point of law that the covenant of the party who scaled the deed, bound all the defendants, yet that, as we have lately determined in Moser v. Libenguth, (M. ss.) is not such a mistake as would entitle him to equitable relief; much less can we on the ground of an equity between the partners themselves, say that an instrument is a deed in equity, which is not a deed at law. That even a court of plenary chancery powers will interpose for or against a stranger, on the foot of such an equity, admits of more than a doubt. Skinner v. Dayton, is not that case; and I cite it mere[291] ly to dissent from’a- point of doctrine asserted in it, on the authority of Ball v. Dunsterville, 4 Term Rep. 313, that an authority to one partner to bind the others by deed, may in some cases be by parol. I am at a loss to conceive how that ease can be deemed an authority for the conclusion deducedfrom it. It was the case of a bill-of sale, sealed by the one in the presence of the other, and delivered-as the act of both-; and it is therefore clear that the validity of the execution was not supposed to depend on the existence of a previous authority. A thing done in the presence of another and at his request, is his immediate act; as for instance the administration of an oath in the presence of a judicial officer, who hy the bye cannot-appoint a deputy. One may adopt as his own, a seal affixed hy another without his authority, or even against his will, and the delivery, being his immediate act, makes the instrument his immediate deed. The law is fixed and certain, that the authority of any agent to bind by deed, can in no case or under any circumstances be by parol.
But it is alleged that the plaintiff was entitled to treat this as the covenant of all the defendants, by their agreement in- the cause.He had obtained an award under the arbitration act, and the defendants, instead of appealing, agreed to let it stand as a- security for what, if any thing should- be found due, on terms of being, “let into a defence on the merits, without being in any degree prejudiced-by the award, in their defence.” This word “merits” has certainly no technical or definite meaning.; but I cannot understand how a defendant can he without merits, who cuts up the plaintiff’s title by the roots, hy showing that he never entered into the covenant, which is the foundation of’the action. Surely the avoidance of a conveyance by the statute of frauds, would be matter of defence on the merits in an ejectment. What was the object of this agreement ? Plainly to place the defendants in the situation in- which-an appeal would have placed them; and in consideration of the expense and trouble thus saved, can it be supposed that they consented to yield the whole ground of their defence, or at least an impassible part of it ? It seems to me that if any thing, were wanting to shut out such a conclusion, it would be found in the stipulation, that they were in no degree to be prejudiced in their defence by the award : in other words that for all the purposes of defence, they should be put in the attitude in which they stood before the reference. It was in their power, by appealing, to obtain the advantage of this defence, and it seems to me they ought not to be deprived of it by any thing less than a precise -and positive relinquishment. But even- if the agreement werq such as it is supposed to be, the effect of it was waived by taking issue on the [292] plea of non est factum, instead of moving to have it struck out, Having thus staked his case on the existence of a fact, the plaintiff could not afterwards object to any evidence, which was pertinent and competent to prove it.
Huston, J.
In this case I will state very briefly the grounds on which I cannot concur with the opinion of the court.
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The opinion of the court was delivered by
Gibson, C. J.
The law of partnership is part of the law merchant, which has respect exclusively to the business of commerce : and as scaled instruments do not ordinarily enter into it, the authority of a partner being limited to the scope of the trade, is held to be incompetent to the execution of them- There may, indeed, be a partnership to carry on a business not purely commercial; still, however, the authority of the partners is regulated by the usages of trade. The measure of this authority allowed by the law merchant, being graduated to the exigencies of commerce by experience, is the wholesome and the convenient one; nor ought we, by an apparent hardship to be drawn into a desire to enlarge it. Undoubtedly the partnership had the benefit of the plaintiff’s wood; but he thought fit to furnish it on separate account; and even if he supposed in -point of law that the covenant of the party who scaled the deed, bound all the defendants, yet that, as we have lately determined in Moser v. Libenguth, (M. ss.) is not such a mistake as would entitle him to equitable relief; much less can we on the ground of an equity between the partners themselves, say that an instrument is a deed in equity, which is not a deed at law. That even a court of plenary chancery powers will interpose for or against a stranger, on the foot of such an equity, admits of more than a doubt. Skinner v. Dayton, is not that case; and I cite it mere[291] ly to dissent from’a- point of doctrine asserted in it, on the authority of Ball v. Dunsterville, 4 Term Rep. 313, that an authority to one partner to bind the others by deed, may in some cases be by parol. I am at a loss to conceive how that ease can be deemed an authority for the conclusion deducedfrom it. It was the case of a bill-of sale, sealed by the one in the presence of the other, and delivered-as the act of both-; and it is therefore clear that the validity of the execution was not supposed to depend on the existence of a previous authority. A thing done in the presence of another and at his request, is his immediate act; as for instance the administration of an oath in the presence of a judicial officer, who hy the bye cannot-appoint a deputy. One may adopt as his own, a seal affixed hy another without his authority, or even against his will, and the delivery, being his immediate act, makes the instrument his immediate deed. The law is fixed and certain, that the authority of any agent to bind by deed, can in no case or under any circumstances be by parol.
But it is alleged that the plaintiff was entitled to treat this as the covenant of all the defendants, by their agreement in- the cause.He had obtained an award under the arbitration act, and the defendants, instead of appealing, agreed to let it stand as a- security for what, if any thing should- be found due, on terms of being, “let into a defence on the merits, without being in any degree prejudiced-by the award, in their defence.” This word “merits” has certainly no technical or definite meaning.; but I cannot understand how a defendant can he without merits, who cuts up the plaintiff’s title by the roots, hy showing that he never entered into the covenant, which is the foundation of’the action. Surely the avoidance of a conveyance by the statute of frauds, would be matter of defence on the merits in an ejectment. What was the object of this agreement ? Plainly to place the defendants in the situation in- which-an appeal would have placed them; and in consideration of the expense and trouble thus saved, can it be supposed that they consented to yield the whole ground of their defence, or at least an impassible part of it ? It seems to me that if any thing, were wanting to shut out such a conclusion, it would be found in the stipulation, that they were in no degree to be prejudiced in their defence by the award : in other words that for all the purposes of defence, they should be put in the attitude in which they stood before the reference. It was in their power, by appealing, to obtain the advantage of this defence, and it seems to me they ought not to be deprived of it by any thing less than a precise -and positive relinquishment. But even- if the agreement werq such as it is supposed to be, the effect of it was waived by taking issue on the [292] plea of non est factum, instead of moving to have it struck out, Having thus staked his case on the existence of a fact, the plaintiff could not afterwards object to any evidence, which was pertinent and competent to prove it.
Huston, J.
In this case I will state very briefly the grounds on which I cannot concur with the opinion of the court.
The grounds on which one partner is not permitted to bind the other by deed in England do not exist, or at least, all of them do not exist here. They are 1st. That the consideration of a deed cannot be enquired into — here it can. 2nd. That a bond will bind the lands of any partner who has lands after his death — here a common note, nay account is recovered after the death of the debtor ' out of land. It is admitted even there, that one partner may bind another by bond sealed in his presence, although with but one seal. This must be solely because his assent is clearly proved by his being present and agreeing, not dissenting; now I cannot see why assent clearly proved in one way is not as effectual as assent clearly proved in another. Here the offer was to prove that each of the partners, who were iron masters and had lands in partnership, as well as chattels, were in the constant habit of making contracts under seal, which were ratified by the others, and the benefits enjoyed by them — that this contract on the face of it for wood, was for wood for their ironworks, and was actually used at them, and the benefit enjoyed by them all. I would then have permitted this to go to the jury, and if they found a clear assent either before or after, I would hold them bound. One partner is often bound in equity, differently from what he is at law, because he has received the benefit. Lang v. Keppele, 1 Bin. 123. I would confine the power to partnership transactions, and to property which came into partnership, and was enjoyed by them under a contract, which they knew was made by one of the firm. I would consider the case of partners, whose principal propertywas real estate, as more within the reason of what I have said, and hold them bound by lease, and other agreements affecting lands, wherever the whole company knew of, acted under, and derived advantage from such contract. As to the agreement by which the judgment was opened, and to try on the merits, whenever any person applies to open a judgment, he is bound to state all the objections which he then has, and every rule and principle, and practice requires this. No person should be permitted to make successively several objections, all of which existed at the same time. I would consider George as waiving all objections, except the one stated in his affidavit, viz. want of notice, and opportunity of appearing before the referees. .But further it was not agreed to set aside the judgment, it stood as [293] a judgment, and the trial was only to ascertain (he amount. The article of agreement was merged in the judgment, and ought to have been admitted to prove the price, and quantity of wood, and to show that no receipts were endorsed on it. I am perfectly satisfied the resuh of this agreement is directly contrary to the understanding of at least one of the parties to it, and to what was intended by both when it was made ; or if one intended this plea, such intention was not made known. I would on the agreement consider this objection as not allowable.