Fox v. Norton
| Decision Date | 19 April 1861 |
| Citation | 9 Mich. 207 |
| Court | Michigan Supreme Court |
| Parties | Charles R. Fox and others v. Amos Norton and others |
Heard April 12, 1861
Error to Ottawa circuit. The case is sufficiently stated in the opinion.
Judgment reversed with costs, and a new trial ordered.
Withey & Gray, for plaintiffs in error.
J. T Holmes, for defendants in error.
Martin, Ch. J. was absent.
Christiancy J.:
Was the bond properly admitted in evidence? This is the first and most important question in the case.
The declaration is upon a bond described as the bond of an the defendants below--Charles R. Fox (master of the steamer Empire), Thomas D. Gilbert and Francis B. Gilbert, sealed with their respective seals--and the obligation to pay is described as the joint obligation of all.
The individual names of the Gilberts do not appear upon the bond. It was, however, proved that Thomas D. Gilbert and Francis B. Gilbert were, at the date of the bond, partners composing the firm of Gilbert & Co., and that the said Thomas D. Gilbert executed the bond in the name of the firm. But no evidence was given or offered, showing or tending to show that the bond was executed by the single partner in the presence of the other partner, nor that the other partner had previously assented to its execution, nor that he subsequently recognized or ratified it as the act or obligation of the firm.
We understand the general rule of law to be well settled, that (with the exception of the release of a debt, which stands upon peculiar grounds), one partner can not execute a specialty binding, as such, upon the firm, without express authority for that purpose under seal. The English decisions recognize but a single exception to this rule, and that is when the single partner executes the instrument in the presence and with the assent of the other member or members of the firm.
But, by the general current of American authorities, the instrument may also be sustained against the firm by proof of prior parol assent, or subsequent parol ratification by the other member.
We are aware of no case which goes further....
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Wilcox v. Dodge
...the issues, it was incumbent upon plaintiffs to show that it was made by all such persons, or there would be a fatal variance. Fox v. Norton, 9 Mich. 207; Gates v. Graham, 12 Wend. 53. In order to show that it was so made, it was necessary, under the circumstances of the case, that it be ma......
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Pierce v. Dekle
... ... it is done. 1 Clark & Skyles on Law of Agency, §§ 15 and 52, ... c; Ball v. Dunsterville, 4 Term Rep. 313; King ... v. Inhabitants of Longuor, 4 Barn. & Adolphus, 647; ... Kidder v. Prescott, 4 Foster (N. H.) 263; Fox v ... Norton, 9 Mich. 207; Lord v. Lord, 58 N.H. 7, ... 42 Am. Rep. 565; Mutual Benefit Life Ins. Co. v ... Brown, 30 N. J. Eq. 193; Mackay v. Bloodgood, 9 ... Johns. (N. Y.) 285; Fichthorn v. Boyer, 5 Watts ... (Pa.) 159, 30 Am. Dec. 300; Fitzpatrick v ... Engard, 175 Pa. 393, 34 A. 803; Gardner v ... ...
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Palmer v. Seligman
...where there is testimony tending to show it, and inferences to be drawn from it, is for the jury. We do not depart from Fox v. Norton, 9 Mich. 207. is, however, a material difference between that case and this. In that case the bond was executed to procure the discharge of a steam-boat whic......
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