Deakin v. Underwood
| Decision Date | 14 June 1887 |
| Parties | DEAKIN v UNDERWOOD. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
The rule that, when an authority to do an act is conferred upon several agents, all must join in its execution, has no application where the authority is conferred upon a partnership. In such case, each partner may execute, and the act of one is the act of the firm, and in strict pursuance of the power.
The power to execute a contract was given to a firm. The member of the firm who signed the principal's name added his own individual name, and not the name of the firm, as agent. Held, that the principal was bound. The agent could have effectually bound the principal by simply fixing to the contract the name of the principal alone.
Where an agent is authorized to sell land “one-half payable on or before one year,” a contract to sell “one-half payable in one year” is in pursuance of the authority; the legal rights of the vendor being the same in either case.
Where the obligor in a contract for the sale of land justifies a refusal to perform under a provision in the contract authorizing him to declare it void “in case the title cannot be made good,” the burden is upon him to prove that fact. Where the alleged defect is a sale of the land for taxes, he must prove that the period for redemption has expired.
Appeal from district court, Ramsey county.
J. B. & W. H. Sanborn, for Deakin, appellant.
Uri L. Lamphrey, for Underwood, respondent.
This was an action to compel specific performance of a contract for the sale of real estate. Plaintiff alleges that the defendant made the contract “by A. B. Wilgus, his duly-authorized agent and attorney in fact.” The contract is attached as an exhibit to the complaint, and is signed:
It appears from the evidence that the authority to sell was given to the firm of A. B. Wilgus & Bro., a partnership composed of A. B. Wilgus and E. P. Wilgus. It is claimed that, upon this state of facts, there was a failure of proof. But the material allegation of the complaint was that defendant had made this contract with plaintiff. It was not necessary to allege that it was made through an agent. It would have been enough to declare upon it generally as of the personal act of the principal. The substance of the issue was not whether defendant had made the contract through an agent, but whether he had made it at all. Hence it cannot be said that there was a failure of proof. The most that can be possibly claimed is that there was a variance between the allegation and proof, but which could not, in this case, have misled the defendant to his prejudice, and therefore is not material.
2. Defendant further contends that the authority to sell being to the firm of A. B. Wilgus & Bro., which was composed of two members, this authority could only be executed by the two jointly, and not by one separately, so as to bind the principal. In support of this contention, he invokes the well-known general rule of the common law that, where an authority to do an act is conferred upon two or more agents, the act is valid to bind the principal only when all of them concur in doing it; the power being joint and not several, Rollins v. Phelps, 5 Minn. 463, (Gil. 373.) Even where the authority is given to several agents, this rule is not so rigid and inflexible as to overcome the apparent intention of the parties to the contrary. Story, Ag. §§ 42, 43; Hawley v. Keeler, 53 N. Y. 114. But we think the rule has no application where the authority is given to a partnership as such. Each member of a partnership is the agent of the firm, and all the partners are jointly accountable for the acts of each other; and, where a person appoints a partnership as his agent, he must be deemed to have done so with reference to these rules of law. When a person delegates authority to a firm, it is an appointment of the partnership as his agent, and not of the individual members as his several and separate agents. Hence each partner may execute, and the act of one is the act of the firm, and in strict pursuance of the power. Gordon v. Buchanan, 5 Yerg. 71.
But it is claimed that,...
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Egner v. States Realty Co.
...conferred upon the partnership—upon the members collectively and as a unit, and not severally and individually. Deakin v. Underwood, 37 Minn. 98, 33 N.W. 318, 5 Am.St.Rep. 827; Annotation, Ann.Cas.1915C, 620. While this is true, the appointment is deemed to have been made with reference to ......
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Nance v. Gray
... ... effect of the transaction. The variance is immaterial ... Lazier v. Wescott, 26 N.Y. 146, 82 Am. Dec. 405; ... Deakin v. Underwood, 37 Minn. 98, 33 N.W. 318, 5 Am ... St. Rep. 827 ... Under ... the original transaction in this case, the vendor had an ... ...
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Henschke v. Young
...where he has not sustained the burden of proof of showing that he cannot make the title marketable as agreed. Deakin v. Underwood, 37 Minn. 98, 33 N.W. 318, 5 Am.St.Rep. 827. Here, there is an absence of a showing that the title cannot be made marketable; in fact, the evidence is to the "In......
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McLaughlin v. Wheeler
...more. It neither helped nor hurt such execution in its legal effect to add the name of the firm, or either of its members. Deakin v. Underwood, 37 Minn. 98, 33 NW 318; Berkey v. Judd, 22 Minn. As indicated by our discussion of the questions already considered, we think the trial court was r......