MacGeorge v. Chemical Mfg. Co.

21 A. 671, 141 Pa. 575, 1891 Pa. LEXIS 1107

Opinion

Per Curiam:

We need not discuss the refusal of the court below to set aside the service of the summons. The return of the sheriff shows a good service; if the return is false, that officer is responsible. In this proceeding, it is conclusive upon the defendant. And if there were a defective service, it is cured by the appearance of the defendant, and the filing of an affidavit of defence. It is too late for the company to contend that it is not in court.

We think judgment was properly entered for want of a sufficient affidavit of defence. Granted that the secretary of the company had no authority to indorse the note in suit, yet the record shows that the company received the proceeds. There is a line of cases which hold that a person cannot repudiate the authority of his agent, and yet enjoy the benefit of his act. This case comes direcitly within the reason of the rule.

The position that this action cannot be sustained, because the plaintiff is a member of the limited partnership, is without merit. It is sufficient to say that he was not suing as a partner, but as a creditor, and not for dividends or profits of the business, but for a debt due by the company.

Judgment affirmed.