Henry Cnty. v. Gates

• Decision Date: 31 January 1858
• Citation: 26 Mo. 315
• Parties: HENRY COUNTY, TO USE, &c., Defendant in Error, v. GATES, Plaintiff in Error.
• Court: Missouri Supreme Court

26 Mo. 315

HENRY COUNTY, TO USE, &c., Defendant in Error,

v.GATES, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1858.

1. One partner has no authority to bind his co-partner by instrument under seal.

2. If one partner, authorized by his co-partner by instrument not under seal to execute a note, executes in his own name and that of his co-partner a sealed note or bond, no recovery can be had thereon against such co-partner; a plea of non est factum will be made good by such facts.

Error to Henry Circuit Court.

This was a suit by Henry County, to the use of the road and canal fund of said county, on the following instrument: “Twelve months after date, we or either promise to pay Henry County, for the use and benefit of the road and canal fund of said county, the sum of one hundred and fifty-six dollars, for value received, with interest from date. As witness our hands and seals this 11th day of November, 1851. [Signed] J. R. Gates (seal), J. M. Vanhoy (seal), Abraham Banta (seal).”

Defaults were taken against Vanhoy and Banta. Gates answered, putting in issue the execution of the bond. The cause was tried by the court without a jury. Vanhoy, one of the defendants, was, without objection on the part of Gates, called as witness. He testified that Gates and himself were partners doing business in Henry county, 1851; that they were indebted to the Bank of Lexington and wished to raise money to pay said debt; that he informed Gates that there was money in the county treasury belonging to the road and canal fund which might be obtained; that Gates gave to witness the following written authority: “I do hereby authorize J. M. Vanhoy to assign my name to a note for two hundred dollars, payable to the county of Henry for the use of the road and canal fund. This 10____, 1851. [Signed] J. R. Gates;” that he (Vanhoy) as co-partner signed Gates' name to said bond sued on.

The court found for plaintiff.

W. P. Johnson, for plaintiff in error.

I. Gates did not sign the bond himself, nor did he authorize any one to sign the bond for him; he did authorize Vanhoy to sign his name to a note for $200. An agent can not bind his principal by deed unless he be authorized by deed. (9 Wend. 56; 14 Serg. & Raw. 331; 5 Mass. 11; 1 Mo. 139; 2 Johns. 213.)

Wright, for defendant in error.

I. Vanhoy was admitted as a witness by consent. There was no objection to him as a witness. (13 N. H. 32, 179; Coll. on Part. 716.) There is no force in the objection that Vanhoy was authorized to sign a note and that the instrument sued is a bond. In legal acceptation the instrument is a promissory note. The authority to Vanhoy was ample. The seal does not vary the liability of Gates. There is no difference in effect in this state between a note with a seal and one without a seal. If the act of one partner be a good and valid act in itself, it will not be rendered less so if done by a specialty, provided the seal do not vary the liability. (Taply v. Butterfield, 1 Metc. 515; Smith on Cont. 354; 5 Watts, 22.) A partner may bind his co-partner by instrument under seal executed in the firm's name and necessary in the usual course of business, provided he had previous authority, and such authority need not be under seal, nor in writing. (3 Kent, Com. 53; 1 Seld. 229; 3 Comst. 150; 2 Stew. 297; 19 Johns. 513; 1 Hall, 262.)

NAPTON, Judge, delivered the opinion of the court.

The rule of the common law in relation to a written instrument under seal executed by an agent, is that the authority of the agent to execute it must be under seal; and, so far as deeds or conveyances of land are concerned, the rule is strictly adhered to. Since the substitution of scrawls for seals and the allowance of defences to bonds as extensive as those to notes, the distinction between these two classes of written instruments has become purely technical, and there has consequently been an inclination on the part of the courts to modify this ancient rule so far as it relates to them. Where the contract would be good without a seal, it has been maintained that the seal will not prevent its enuring as a simple contract, though the authority be by parol or merely implied from the relations between principal and agent. (Lawrence v. Taylor, 5 Hill,--; Worrell v. Munn, 1 Seld. 239.) So in partnerships, where property has been conveyed by a sealed instrument, which could as well have been transferred by a simple contract or by parol, the title will pass, although the partner who...