Montgomery v. Boone

41 Ky. 244, 2 B. Mon. 244, 1842 Ky. LEXIS 6

• Court: Court of Appeals of Kentucky
• Decided: April 13, 1842
• Status: Published

Opinion

Ciuee Justice Robertson

delivered the Opinion of the Court.

The only question in this case is whether a written undertaking to pay a partnership liability, signed in the name of the firm' and sealed by one of the partners, without the express authority of the other co-partners, is the legal obligation of. all of them, or of him only who affixed the signature and scrawl.

Adjudged cases in England authoritatively established the doctrine that one partner has no implied power to bind his colleagues by deed, and however arbitrary that doctrine may now be deemed to be, or however inconsistent with the harmony and reason of the common law,. this Court has no authority to overrule it.

The principle thus settled as to deeds, seems to have been recognized as applicable to all contracts under seal to pay money, even though a seal was not essential to the obligation of any such contract. This may have been a perversion or extension of the principle as to deeds, which was probably applicable at first only to such writings as would be ineffectual without a seal, and not to such as might be as binding and effectual without as with a seal. All judicial question however, has been concluded on this subject, also by this Court.,

One partner in Kenl’y. notwithstanding the statute of 1812, giving to a promissory note ior money, all the dignity andeffect of writing under Seal, may bind his partner by such unsealed note, but not if a seal or scrawl be placed to the instrument, Kelly for plaintiff; no appearance for defendant.

And although, since the statute of 1812 as to executory writings, a promissory note for money has here all the legal dignity and effect of a bond under seal, nevertheless our predecessors decided in the case of Trimble vs Smith, (2 A. K. M. 375,) that one partner had notan implied authority to bind his associates by a covenant, with a scrawl—and in Southard and Star vs Steel, (3d Mon. 438,) that he has such authority to bind them by a covenant under our statute, without a seal or scrawl; and hence, according to these cases, if a partner, in executing several notes for a debt, in instalments, should happen to affix a superfluous scrawl to one of them and omit it as to the others, the first might be binding on himself alone, whilst the others would bind all the partners; and this would be the only legal effect of the scrawl, without which the note would have the same effect in every other respect.

After the enactment of the statute of '1812, it might have been perhaps allowable; and, if allowable, it might have been better to have determined either that the implied authority of a partner applied to all notes for money, whether sealed or unsealed, or that it did not apply to any, as all had become, in effect, sealed obligations.

But the law, as adjudged in the cases just quoted, has been well understood, and has never been overruled or disturbed by either legislative or judicial authority, and therefore, as in such a case of mere arbitrary law, it is not so material what rule is adopted, as that it should be fixed and universal—we will take the doctrine, on this subject, as we find it in former adjudications by this Court.

And, therefore, our conclusion is, that as the covenant in this case had a scrawl affixed to it, the partner who executed it had no implied authority thus to bind his co-partners; and that therefore as adjudged in the Court below, that covenant is not, in the judgment of technical law, their deed.

The judgment of the Circuit Court is therefore affirmed.