Edwards v. Dillon

• Decision Date: 27 October 1893
• Citation: 147 Ill. 14,35 N.E. 135
• Parties: EDWARDS v. DILLON.
• Court: Illinois Supreme Court

147 Ill. 14

35 N.E. 135

EDWARDS

v.DILLON.¹

Supreme Court of Illinois.

Oct. 27, 1893.

Appeal from appellate court, third district.

Assumpsit by Bjoern Edwards against Levi Dillon. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff appeals. Affirmed.

Oscar M. Torrison and Kerrick, Lucas & Spencer, for appellant.

Phillips & Porter, for appellee.

MAGRUDER, J.

This is an action of assumpsit brought by the appellant against the appellee upon the following sealed instrument: ‘This is to certify that Levi Dillon & Sons have this day sold to B. Edwards, of Chicago, Ill., the imported Norman stallion Cambrone, for the sum of eighteen hundred dollars. We warrant the said stallion sound and healthy, but assume no responsibility on account of disease or accident after this date. We guaranty that the said stallion, with proper handling, shall prove to be an average foal getter. In case the said stallion shall fail to get colts, we agree to exchange him for a stallion of equal merits, and to pay half of the expense incurred in making said exchange. Said stallion shall have a fair trial of two years before being condemned as a breeder. Cambrone was foaled in France in 1880, and imported to the United States by Dillon Bros. in 1883. Cambrone is recorded in the National Register of Norman Horses, No. 2,081. In witness whereof, we have hereunto set our hands and seal this thirtieth day of January, 1884. Levi Dillion & Sons. [Seal.]’ All of the foregoing instrument was a part of the printed form hereinafter referred to, except the signature to said instrument, and those words thereof which are italicized. The declaration avers breaches of warranty and guaranty set forth in the certificate. The defendant, Levi Dillon, pleaded in abatement the nonjoinder of his four partners, setting up that the alleged promises, if any, were made by the firm of ‘Levi Dillon & Sons,’ composed of Levi Dillon, John Harding, James Railsback, Ellis Dillon, and James C. Duncan, and that the horse in question, at the time of the sale, was the property of the firm, and not of Levi Dillon alone. The plaintiff did not amend his declaration by making new parties, but filed his replication joining an issue of fact on the plea. In the circuit court there was a trial by jury, and verdict and judgment were in favor of the defendant, which judgment has been affirmed by the appellate court.

It is admitted that the signature to the contract, ‘Levi Dillon & Sons,’ was made by Levi Dillon alone. The issue tried below was whether or not the contract was the contract of Levi Dillon & Sons, or of Levi Dillon alone. The jury found it to be the contract of the firm, and the judgment of the appellate court is conclusive of the question of fact. But it is urged by appellant that the court erred in allowing the defendant to introduce, over plaintiff's objection, oral proof of the partnership, upon the alleged ground that the contract sued on was under seal, and that Levi Dillon had no power to sign a sealed instrument for the firm, and that, therefore, under the law, the signature was that of Levi Dillon alone, and that he alone was liable. The same question presented by the objections to evidence arises upon the instructions. It is assigned as error that the court refused to instruct the jury, at plaintiff's request, that, ‘in order to bind the partners by signing and sealing the contract in question in the firm name of Levi Dillon & Sons, the defendant must have had express authority from each one of his partners to execute the contract under seal.’

At common law, one partner could not bind the others by an instrument under seal, unless they gave him express authority under their seals. In harmony with this rule, it has been held that where one partner executes an instrument under seal, in the firm name, without authority under seal, he alone is bound by it. Story, Partn. (7th Ed.) §§ 117, 119; 1 Bates, Partn. § 421. The general weight of authority is undoubtedly in favor of the position that one partner has no implied power to bind the firm by instrument under seal. 17 Amer. & Eng. Enc. Law, p. 1001, and cases in notes. But the American courts have been inclined to depart from the harshness of the common-law rule. They hold to the doctrine that, where one partner executes an instrument under seal in the name of the firm, it will be regarded as binding upon the firm, ‘where an express or an implied authority or confirmation could be justly established, not under seal, whether it be verbal or in writing or circumstantial.’ Story, Partn. (7th Ed.) §§ 121, 122. The prior assent or subsequent ratification may not only be by parol, but may be implied from declarations, or from acts and circumstances. 1 Bates, Partn. § 416; Pars. Partn. marg. p. 181, and notes; Gram v. Seton, 1 Hall, 262; Cady v. Shepherd, 11 Pick. 400; 17 Amer. & Eng. Enc. Law, p. 1002, and cases in note 4. In Eames v. Preston, 20 Ill. 389, the question was whether the action of assumpsit could be maintained upon a certain note therein set forth, which was executed by a firm. Inasmuch as the note was held to be under the seal either of the firm or of the partner signing it, it followed that suit in assumpsit would not lie upon it, under the statute as it then existed. The material inquiry in that case was, not so much whether one partner had authority to execute an instrument under seal in the name of the firm, as whether the instrument there under consideration was or was not a sealed instrument. Under section 19 of the present practice act, assumpsit may be maintained upon sealed instruments. That section has abolished the distinction between sealed and unsealed instruments, as to the form of action. Harms v. McCormick, 132 Ill. 104, 22 N. E. Rep. 511. In Peine v. Weber, 47 Ill. 41, we said: ‘We think it may be safely said the modern rule is that one partner may, in furtherance of the partnership business, and for its benefit, execute a deed under seal, which will be binding on the other, if he has fore-knowledge, or subsequently ratifies it, and this may be proved by acts and circumstances, or by his verbal declarations and admissions.’ Under the American doctrine the liability of the partners will not be confined to the one who signs the sealed instrument in the name of the firm, if it appears that the prior assent or subsequent ratification of the other partners can be implied from their acts and declarations, or from other proper evidence tending to show such assent or ratification. Wilcox v. Dodge, 12 Ill. App. 517;Walsh v. Lennon, 98 Ill. 27. There is evidence in the present record tending to show that the act of ...