Cummings v. S. Funkenstein Co.

• Decision Date: 18 March 1919
• Docket Number: 2 Div. 182
• Citation: 17 Ala.App. 7,81 So. 343
• Parties: CUMMINGS v. S. FUNKENSTEIN CO., Limited.
• Court: Alabama Court of Appeals

81 So. 343

17 Ala.App. 7

CUMMINGS v. S. FUNKENSTEIN CO., Limited.

2 Div. 182

Court of Appeals of Alabama

March 18, 1919

Appeal from Circuit Court, Hale County; B.M. Miller, Judge.

Action by the S. Funkenstein Company, Limited, against C.D Cummings, on the common counts for merchandise sold and delivered. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Thomas E. Knight, of Greensboro, for appellant.

Joseph H. James, of Greensboro, for appellee.

SAMFORD J.

The defendant, C.D. Cummings, with his son, W.O. Cummings, was during the years 1913 and 1914 engaged in a general merchandise business in Hale county, Ala., under the firm name of C.D. Cummings & Son. The plaintiff in the court below was engaged in the whisky business in New Orleans, La. From March 3, 1913, to January 6, 1914, the plaintiff shipped to various parties on the orders of W.O. Cummings, signed "C.D. Cummings & Son, by W.O.C.," $446.15 worth of whisky and beer. It was shown that, when these orders were by letter, all of them, except in three instances, were signed by W.O. Cummings, as follows: "C.D. Cummings & Son, by W.O.C.," or "C.D. Cummings by H. & C." The three orders above referred to did not purport to be for the partnership, and were orders signed by C.D. Cummings personally. Nor does it appear that C.D. Cummings ordered the whisky to be charged to the firm account, or had any knowledge that it was being so charged. The defendant offered to prove that the ordering and sale of whisky and beer was not within the terms of the partnership contract, that it was not a part of the business of the firm, and that C.D Cummings was not informed that the whisky was being ordered in the firm name, and in fact knew nothing of the whisky being ordered (except such as he ordered himself, as an individual, to be shipped to himself and to one other party).

It is a rule well established that the law of partnership is a branch of the law of agency. The functions, duties, and rights of the partners in a great measure comprehend those of agents, and the general rules of law applicable to agents are alike applicable to partners, and every partner is not only a principal, but also a general and authorized agent of the firm and of each partner for all purposes within the scope and objects of the partnership. 20 R.C.L. p. 882; Bank of Menlo v. Arnold & Co., 13 Ala.App. 462, 68 So. 699.

But partnerships are not bound by every contract of purchase an individual member may make in the firm name. If such purchases are not within the apparent scope of the firm business as ordinarily conducted, or appropriate to the business in which the firm is engaged, the partnership will not be liable. 30 Cyc. 492; Ala. Fert. Co. v. Reynolds &amp Lee, 79 Ala. 502; McCrary v. Saughter, 58 Ala. 230-235; Story on Part. pars. 110, 113. The general authority of the partners to bind the partnership is to be tested by the nature of the particular business to which the partnership relates, and its ordinary usages. Clark v. Taylor, 68 Ala. 453. And the partnership is not bound by the unauthorized acts of one of the partners in a matter not within the apparent scope of the business of the partnership. Western Stage Co. v. Walker, 2 Iowa, 504, 65 Am.Dec. 789; Brooks v. Hamilton, 10 Hart. (O.S.La.) 285, 13 Am.Dec. 328; Locke v. Lewis, 124 Mass. 1, 26 Am.Rep. 631; 19 Eng.Rul.Cas. 439. In arriving at the scope of business carried on by a partnership, the authority for each transaction may be implied from the nature of the business, according to the usual and ordinary course in which it is carried on by those engaged in it, in the locality in which its seat is, or as reasonably necessary or fit for its successful prosecution. 20 R.C.L. 885; Irwin v. Williar, 110 U.S. 499, 4 Sup.Ct. 160, 28 L.Ed. 225.

We know judicially that the county of Hale was a prohibition district...