Weeks v. Mascoma Rake Co.

58 N.H. 101

Opinion

Stanley, J.

“Actions upon notes secured by mortgage may be brought, so long as the plaintiff is entitled to bring an action upon the mortgage.” Gen. St., c. 205, s. 5. If Currier had been authorized to affix a seal and thereby bind his co-partners, the note would not have been barred as to any of the defendants; but partnerships do not have a common seal, and hence no one of the firm could affix a seal for his co-partners, or either of them, without their previous authority or subsequent ratification. 7 D. & E. 207; 4 ib. 313; 4 Esp. 220; 2 Caines 254; Parsons on Partnership 178, note.

But, though one partner cannot affix a seal and thus bind his co-partners, he binds himself by the seal. This rule is derived from that law of agency by which, if the agent acts without authority, the principal is not bound, but the agent is. Elliot v. Davis, 2 Bos. & Pul. 338 ; White v. Skinner, 13 Johns. 307 ; Skinner v. Dayton, 19 Johns. 513; Harrison v. Jackson, 7 T. R. 210 ; Appleton v. Binks, 5 East 148. Currier, then, when he executed the mortgage under seal, failed to bind his co-partners, but bound himself, and, as an action could be brought on the mortgage, the note in suit, as to him, was not barred by the statute.

Case discharged.

Doe, O. J., did not sit.