69 N.Y. 24, King v. Sarria

Citation:69 N.Y. 24
Party Name:PETER V. KING et al., Appellants, v. DOMINGO SARRIA, impleaded, etc., Respondent.
Case Date:March 20, 1877
Court:New York Court of Appeals
 
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69 N.Y. 24

PETER V. KING et al., Appellants,

v.

DOMINGO SARRIA, impleaded, etc., Respondent.

New York Court of Appeal

March 20, 1877

Argued Feb. 6, 1877.

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COUNSEL

S. P. Nash for the appellants. The respondent being confessedly a partner of the firm of Grau, Lopez & Co., and sharing as such in the profits of its business, was liable, unless exempted from such liability by the law of Spain. (Leggett v. Hyde, 58 N.Y. 272; Van Ingen v. Whitman, 62 Id., 513.) The liabilities of the members of said firm are to be treated as if the partnership was governed by the laws of New York. (Story's Confl. of Laws, § 283; Coolidge v. Poor, 15 Mass., 427; Boyle v. Zachaire, 6 Pet., 635; Milne v. Moreton, 6 Binn., 353, 359; Curtis v. Leavitt, 15 N.Y. 9, 227; Consequa v. Fanning, 17 J. R., 511.) The respondent's claim that he was exempted from liability by a private arrangement between himself and his partners, limiting his liability, is not tenable. (Baird's Case, L. R., 5 Ch. App., 725, 733; Greenwood's Case, 3 De G. M. & G., 459, 476;

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Ontario Bk. v. Hennessey, 48 N.Y. 545; Leggett v. Hyde, 58 Id., 272; N.Y. & N. H. R. R. Co. v. Schuyler, 34 N.Y. 30, 65, 73; Edmunds v. Bushell, L. R., 1 Q. B., 97; Cox v. Hickman, 8 H. of L. Cas., 268.)All partnerships are prima facie general. (Lindl. on Part., 302; Walden v. Sherburne, 15 J. R., 409; 3 De G. M. & G., 476; 4 Pard. Droit Comm., 170, No. 1028.) The exemption claimed by respondent being contrary to the policy of our law should fail. (1 R. S., 764; 2 R. S. [ Banks, 6th ed.], 1153; Pardessus, Art., 1032; Am. Lin. Thread Co. v. Wortendyke, 24 N.Y. 550; Dike v. Erie R. Co., 45 Id., 113; Kelly v. Crapo, Id., 86; Milnor v. N.Y. & N. H. R. R. Co., 53 Id., 363; Story on Confl. of Laws, § § 414-416, 513.)

F. R. Coudert and A. P. Whitehead for the respondent. In the absence of any finding or request to find upon the subject of plaintiff's knowledge of the relation the respondent sustained to the firm of Grau, Lopez & Co., it must be presumed they knew he was a limited partner. (Carman v. Tully, 21 N.Y. 547; Grant v. Morse, 22 Id., 323; Valentine v. Conner, 40 Id., 248; Phelps v. McDonald, 26 Id., 82; Smith v. Coe, 29 Id., 666; Brainard v. Dunning, 30 Id., 211; Van Slyke v. Hyatt, 46 Id., 265; Smith v. Coe, 29 Id., 666; Barnes v. Perrine, 12 Id., 18; Hill v. Grant, 46 Id., 496; Fullerton v. McCurdy, 55 Id., 637.) The respondent's position must be determined by the Spanish law. (Story's Confl. of Laws [7th ed.], § 320, a; Wharton's Confl. of Laws, § § 468-470; Westlake on Priv. Int'l Law, Art., 211, 220, 222; Lindl. on Part. Suppl., 26, 27; Savigny on Priv. Int'l Law, 190, 191; 5 Felix Droit Int'l [vol. 2], No. 311; Burrows v. Downs, 9 R. I., 446; 11 Am. R., 283; Cutler v. Thomas, 25 Vt., 73; Hastings v. Hopkinson, 28 Id., 108; Hogg v. Orgill, 34 Penn., 344; Carroll v. Waters, 9 Martin, 500; Baldwin v. v. Gray, 4 Id. [ N. S.], 192, 193; Ferguson v. Flower, Id., 312.)

FOLGER, J.

The plaintiffs seek to recover a sum of money from the defendant Sarria, upon contract. They do not

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show that he in person made with them the contract which they allege. It is, indeed, one of the conceded facts in the case, that the contract was made, as matter of fact, by persons other than Sarria. To succeed, then, in their action, they must show that those persons in some way represented Sarria, and had authority to bind him thereto, to the full extent to which the plaintiffs seek to hold him. To show such authority, proof is made that Sarria was a partner with Grau & Lopez, and that the latter two, under the firm name of Grau, Lopez & Co., made the contract. If nothing more appeared in the case, this would suffice for the plaintiffs; for, by virtue of the relation of partnership, one partner becomes the general agent for the other, as to all matters within the scope of the partnership dealings, and has thereby given to him all authority needful for carrying on the partnership, and which is usually exercised by partners in that business; (Hawken v. Bourne, 8 M. & W., 703.)Indeed, it is as agent that the power of one partner to bind his co-partner is obtained and exercised. The law of partnership is a branch of the law of principal and agent; (Cox v. Hickman, 8 H. of L. Cas., 268; Baring v. Lyman, 1 Story, 396; Worrall v. Munn, 5 N.Y. , 229.) In the case first above cited (8 M. & W., supra), it is added: that any restriction which by agreement amongst the partners is attempted to be imposed upon the authority which one partner possesses as the general agent of the other, is operative only between the partners themselves, and does not limit the authority as to third persons, who acquire rights by its exercise, unless they know that such restriction has been made. It is manifest, however, that this remark is to be qualified, when taken in connection with any statute law, which has provided for the formation of limited partnerships, where that...

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