Hamill v. Purvis , 2 Pen. & W. 177 ( 1830 )

The opinion of the Court was delivered by

Smith, J.

There was no proof offered, to show that Robert .Purvis had any authority from William Purvis to sign the partnership name to the guaranty in question, nor any evidence to show a subsequent recognition of the same by William Purvis. In Sutton and McNickle v. Irwin and another, 12 Serg. & Rawle, 15, the rule applicable to partnerships, is said to be, that in relation to their joint concerns, one of the partners may bind the other. His authority, to the other partner, however, has its limitation, and he cannot enter into any engagement to bind the firm, which is unconnected with the partnership; for the law will intend, that when one deals with a partner, in a matter not within the compass of the partnership, he does this, in his .private and individual capacity. Indeed, an engagement by one partner, to bind the partnership credit, in- a transaction unconnected with, and not fairly and reasonably within, the scope of the partnership, is, as to the other partner, fraudulent and void.

Nor does it appear, in the case before us, that it was usual for William and Robert Purvis, in the course of their business, to give such guaranties. The true criterion, whether the act of one partner makes the other responsible, seems to be, whether the aót was or was not done according to the usual course of business. 1 Salk. 126, 292. As then the plaintiff did not prove, nor offer to prove the assent, or authority, or recognition of William Purvis, that Robert Purvis should sign the partnership name or firm to the guaranty, which it was incumbent on him to ■prove ; nor that it was in the usual course of their business, i?o5-ert could not bind his partner William; so that the evidence, in ¡our opinion, as offered, would not have been made out, or did not mate out, the plaintiff’s case, it was therefore correctly rejected.

HustoN, J, — Dissented.

Judgment affirmed.