Fisher v. Pender
| Decision Date | 30 June 1860 |
| Citation | 7 Jones 483,52 N.C. 483 |
| Court | North Carolina Supreme Court |
| Parties | JEFFERSON FISHER v. JOS. J. B. PENDER. |
Where, upon the face of an instrument, it appeared that one signed, sealed and delivered it, in order to bind the firm of which he was a member, and not as his own individual deed, it was Held he could not be held individually bound.
THIS was an action of DEBT, commenced by a warrant before a justice of the peace, and brought, by appeal, to the Superior Court of Edgecombe, where it was tried last Term, by SAUNDERS, J.
The plaintiff declared on the following sealed instrument:
“Due J. Fisher, forty-five dollars, for value received, 12th October 1854.
PENDER & BRYAN, ( seal.)”
The execution, by the defendant, Pender, was admitted. The note was given by him for a balance of a partnership debt, due on a trading between plaintiff and Pender & Bryan, as partners. It was admitted, also, that Pender had no authority to bind the firm by deed.
It was insisted, on behalf of the plaintiff, that the bond was good as the deed of Pender.
The defendant pleaded the general issue and statute of limitations. And the foregoing facts being agreed by the parties, the case was submitted for the judgment of the Court.
His Honor being of opinion with the defendant, on the case agreed, gave judgment, accordingly, from which the plaintiff appealed.
Moore and Bridgers, for the plaintiff .
No counsel appeared for the defendant in this Court.
The bill of exceptions in this case, presents the question, whether an instrument, in the form of a sealed, promissory note, given by one partner, in the partnership name, and for a partnership debt, but without any authority to bind the other partners by a deed, is the bond of the partner who signed it.
Mr. Collyer, in his valuable work on partnership, says that “where a partner executes a deed for himself and his copartner, it has frequently been decided that he himself is bound, though his copartner is not.” Coll. on Pars. p. 444, sec. 471, Perkins' Edition. Several cases have been referred to by the counsel for the plaintiff, in this and other States of the Union, in which similar language has been used. In North Carolina, the rule, though so stated, has never been directly adjudicated. See Blanchard v. Pasteur, 2 Hay. p. 590 of the 2nd. Edition. Person v. Carter, 3 Murph. Rep. 321. Horton v. Child, 4 Dev. Rep. 460. Spears v. Gillett, 1 Dev. Eq., 466. Wharton v. Woodburn, 4 Dev. & Bat. Rep., 507 and Fronebarger v. Henry, 6 Jones' Rep. 548. The only English case relied upon for his position, by Mr. Collyer, is Elliot v. Davis, 2 Bos. & Pul. Rep., 338, and it is necessary that we should examine that case with some care; for by a proper analysis of it, we apprehend that the true rule, upon the subject which we are now discussing, may be ascertained and applied. It was an action of debt on a bond, to which the defendant pleaded the general issue of non est factum. On the trial, it appeared that the bond sued on was given to the plaintiff by the defendant, as surety for a third person; that previous to its execution, the defendant having brought it to the plaintiff's counting house, filled up with his own name only as a surety, it was objected on the part of the plaintiff, that he meant to have the joint security of the defendant and his partner, one Marsh; that upon this objection being made, the bond was, with the consent of the defendant, but in the absence of Marsh, altered into a joint and several bond in the name of the defendant and Marsh, and being signed by the defendant, “Davis & Marsh,” was, by the former, regularly sealed and delivered as his deed; and that Marsh, on being informed of the transaction, expressed his disapprobation of what the defendant had done. Upon this evidence, it was insisted, on the part of the defendant, that there was no regular single execution of the bond, there being but one seal, against which were set the names of “Davis & Marsh,” and that the execution, therefore, being insufficient, as against both, was insufficient also as against the defendant. A verdict was found for the plaintiff, with leave to the defendant to move to have the verdict set aside and a nonsuit entered. Accordingly, a rule nisi having been obtained for that purpose, on a former day, it came on to be argued, and was argued before the Court of Common Pleas by counsel on both sides, when Lord ELDON, who was then the Chief Justice of that Court, pronounced for himself and his brethren, the following opinion.
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Ballard v. Ballard
... ... 633] in realty is transferred from the ... grantor to the grantee. Strain v. Fitzgerald, 128 ... N.C. 396, 38 S.E. 929; Fisher v. Pender, 52 N.C ... 483. The requisites to the valid delivery of a deed are ... threefold. They are: (1) An intention on the part of the ... ...
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New Home Bldg. Supply Co. v. Nations, 602
...the grantor to the grantee. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; Strain v. Fitzgerald, 128 N.C. 396, 38 S.E. 929; Fisher v. Pender, 52 N.C. 483; 16 Am.Jur., Deeds, § 5. A grantor, a grantee, and a thing granted are necessary requisites. Powell v. Powell, 168 N.C. 561, 84 S.E. 86......
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...that the instrument was properly executed."A deed is a written instrument, signed, sealed and delivered by the parties." Fisher v. Pender, 52 N. C. 483, 485. ¶12 Bouv. Law Dict. (3d Rev.) vol. 1, p. 812, in defining deed, states:"A writing or instrument, written on paper or parchment, seale......
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