Russell v. Annable

109 Mass. 72

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1871
• Status: Published

Opinions

Ames, J.

It is well settled that one partner cannot bind his associates by affixing his signature, in the name and style of the firm, to an instrument under seal. To make such a transaction binding, it must appear that there was either a previous author* ity, or a subsequent ratification on the part of the other partners, adopting the signature as binding upon them. Cady v. Shepherd, 11 Pick. 400. Van Deusen v. Blum, 18 Pick. 229. Swan v. Stedman, 4 Met. 548. Dillon v. Brown, 11 Gray, 179. The report in this case presents no evidence of any previous authority or subsequent ratification, and it follows that the bond is not so executed as to bind the members of the firm.

The bond purports to be the joint and several contract of certain persons named therein as principals, and the defendant and George M. Stevens as sureties. The defendant’s undertaking is only that the principal obligors shall fulfil the obligation which by the terms of the bond they have assumed. But. if the bond was not binding upon both Dennett and Pottle, (as it was not, for want of due and proper execution of the instrument on their part,) they assumed no obligation, and it was not binding upon the sureties. It was essential to the bond that the principals should be parties to it; it is recited that they are so, and the instrument is incomplete and void without their signature. The remedy of sureties against their principals might be greatly embarrasssed, if such an instrument as this should be held binding. There is nothing to estop any member of the firm, who did not sign it, from denying that he was a party to it, and it was no part of the defendant’s contract that he should be surety for one member of the firm, and not for both. The instrument is incomplete without the signature of each partner, or proof that the signature affixed had the assent and sanction of each of them. The sureties on a bond are not holden, if the instrument is not executed by the person whose name is stated as the principal therein. It should be executed by all the intended parties. Bean v. Parker, 17 Mass. 591. Wood v. Washburn, 2 Pick. 24.

The instrument, being found incapable of taking effect as a specialty, cannot operate as a simple contract. Cases have indeed arisen, in which a bond, duly executed, expressing a contract which the parties had a right to make, has been held to be valid at common law, although not made with the formalities, or exe* rated in the mode, provided by a statute under which it purports to have been given. See Sweetser v. Hay, 2 Gray, 49, and casas there cited. But we find no case in which it has been held that a written instrument, purporting to be a specialty, and plainly intended by the parties to have all the incidents and characteristics of a bond in the strict and technical sense of that word, has ever been transmuted by the court into a simple contract, for the reason that it has not been properly executed to take effect as a contract under seal.

It is therefore held, by a majority of the court, that there should be judgment for the defendant.