12 N.W. 655 (Mich. 1882), Banner Tobacco Co. v. Jenison

• Citation: 12 N.W. 655, 48 Mich. 459
• Opinion Judge: COOLEY, J.
• Party Name: BANNER TOBACCO CO. v. JENISON and others.
• Attorney: [48 Mich. 460] Taggart, Stone & Earle, for plaintiff. J.C. Fitzgerald, for defendants and appellants.
• Judge Panel: CAMPBELL and MARSTON, JJ., concur.
• Case Date: June 14, 1882
• Court: Supreme Court of Michigan

Page 655

12 N.W. 655 (Mich. 1882)

48 Mich. 459

BANNER TOBACCO CO.

v.

JENISON and others.

Supreme Court of Michigan

June 14, 1882

An insolvent debtor made a chattel mortgage on his stock of goods to a particular firm of creditors who did business in another town, and recorded the mortgage without their request or knowledge. One of the firm, however, took nominal control of the business, putting their sign over his door and starting a bank account in the firm name, but leaving him to carry on the store as their agent, with the caution not to get it in debt. The agent carried on the business for over four years and made purchases on credit. And one from whom he had so purchased afterwards brought suit against the firm for the purchase price of goods. Held that very slight circumstances of knowledge or assent on the part of the other partner ought to be enough to make the firm responsible for acts of the agent in keeping up the stock in the usual way.

Where one member of a firm has taken a chattel mortgage on a stock of goods to secure a debt to the firm, he has authority, as partner, to take goods in payment of the debt and to create an agency for selling them by putting them in the mortgagor's charge, and if he thinks that keeping up the stock is the best way to sell the goods to advantage, slight evidence of his partner's assent is enough to make the firm responsible for the agent's acts in purchasing goods for that purpose. And secret instructions to the agent will not enable them to escape responsibility for acts which, in the usual course of the business, the public would have a right to understand were authorized.

Where a firm doing business in one place take charge, under a chattel mortgage, of the business of an insolvent debtor in another place and leave him to carry it on in their name, it is not negligence for others to sell to the agent on the responsibility of the firm without inquiring into the agent's authority; the firm must take the risks of the arrangement, which is of a questionable nature.

The question whether the carrying on of a specified business is within the scope of a partnership is a question of law rather than of fact.

It is not error to reject a special question to the jury where it involves law rather than fact and is covered by instructions.

Inconclusive special questions to a jury may be rejected.

Error to Kent.

[48 Mich. 460] Taggart, Stone & Earle, for plaintiff.

J.C. Fitzgerald, for defendants and appellants.

COOLEY, J.

This is an action of assumpsit originating in justice's court, appealed to and tried in the...