Willey v. Lines

8 Del. 542

• Court: Superior Court of Delaware
• Decided: July 5, 1867
• Status: Published

Opinion

By the Court.

The general principle has been correctly stated by the counsel for the defendants, that one partner cannot bind the firm by deed unless authorized by deed to do so, or by the articles of copartnership executed under their seals. But since the case of Little v. Hazzard Prettyman, 5 Harr. 291, it has been considered well and definitively settled in this court, that when, one of two partners executes an instrument like this under seal in the name of the firm and for the firm, in the presence and with the assent of the other member, it will bind both as the act and deed of the firm. In such case the act does not constitute in contemplation of law a delegation of power by the one partner to the other to bind the firm by deed, but it imports rather an act performed in person by the other partner also when present and assenting to it, upon the principle of quifacit per alium, facit per se. Even in the case of a will which the law requires tobe executed by the testator himself in the most formal and authentic manner, it permits it to be signed for him and in his name and presence by another expressly authorized by him to do so. As to the other ground, it is apparent that the note was unskillfully or inadvertantly filled up in the body of it, but Sudler, though not named in the body of it, signed and sealed it evidently as a principal, and -not as a guarantor merely, for there was nothing added to his signature to qualify his obligation under it, and there was, therefore, less in it to warrant that than the other presumption; and the court could not permit such an imperfection and informality in the penning of it merely, to defeat the evident intention and understanding of all the parties to it at the time when it was so executed. The nonsuit is consequently refused.

The case then went to the jury and the plaintiffs had a verdict.