Lewin v. Barry

• Decision Date: 10 December 1900
• Parties: LEWIN et al. v. BARRY.
• Court: Colorado Court of Appeals

63 P. 121

15 Colo.App. 461

LEWIN et al. v. BARRY.

Court of Appeals of Colorado

December 10, 1900

Appeal from district court, Arapahoe county.

Action for rent by Mary E. Barry against one Roblyer and others. From a judgment in favor of plaintiff, Philip Lewin & Co. appeal. Reversed.

Muller & Weil, for appellants.

John R Smith, for appellee.

BISSELL P.J.

However inequitable the result may appear to be, it is quite plain from the record that Mrs. Barry was not entitled to judgment against both the firm of Lewin & Co. and Roblyer, the tenant. It is quite possible that in an action properly conceived she may have been entitled to judgment against Lewin and Roblyer but, without other proof than that which she made upon the trial, she could not recover against the firm. In 1891, John O'Brien was the owner of some premises in Littleton. In May he leased them for a term of three years to Roblyer, who occupied them as a saloon, at an agreed rental of $40 per month. At some time either before or after possession was taken, and either before or after the lease was executed by the lessor and the lessee,--and we do not undertake to determine which,--the lease was underwritten with this clause: "I hereby guaranty the payment of the above-mentioned rent. Ph. Lewin & Co." The time this guaranty was affixed and signed may be, under some circumstances, a very important consideration, and the evidence of the circumstances attending it may be of controlling force. We practically make no suggestion about it, leaving it for the jury to determine.

Roblyer went into possession, and remained there for a little upwards of a year, paying his rent, and then moved out. Shortly after, Lewin, or Lewin & Co., removed the fixtures, on which they held a mortgage, and the premises were practically abandoned, though the key seems to have been with the widow of Mr. O'Brien, who had died. His widow subsequently remarried. On the conclusion of the term Mrs. Barry, being the widow and the representative, brought this suit against Roblyer and Lewin & Co. to recover the unpaid rental for a little less than two years, and she had judgment for somewhat more than $1,200. She was the only witness for herself. The lease was produced, and about it there was no dispute, and then she gave evidence to the point that at some time, the date of which was disputed, she took the lease, and went, as she claims, to the place of business of Lewin & Co., and showed the lease to Lewin, with the guaranty written on it, and asked him if it was all right. We do not need to detail the conversation. It is enough to state this was the purport of her inquiry, and Lewin said it was all right, or at least gave her to so understand. Relying on this assurance, matters went along until the premises were abandoned. The plaintiff gave no evidence respecting the authority of Lewin to sign for the firm, respecting the knowledge of the co-partner, Levy, and made no proof about the business of the partnership from which authority could be presumed to execute a guaranty for the payment of rent. On the conclusion of the plaintiff's case the defendants moved for a nonsuit, which certainly ought, under this evidence, to have been granted. It was denied, and the defendants went to proof. They produced evidence to the point that there was no specific authority given to Lewin by the firm or by Mr. Levy to guaranty the rent, and direct evidence to the point that Levy knew nothing about it until suit was begun to collect it. Much evidence was also offered by the defendants to show that the guaranty was not signed until after the tenant went into possession, and after the lease had been executed and delivered as a completed contract binding on both the landlord and the tenant. After this proposition had been supported, the defendants then offered to prove that no new consideration passed between the firm and the landlord. This evidence was rejected. When the trial was concluded, the court gave the jury two forms of verdict; one for the plaintiff and one for the defendants. The defendants then asked that a form of verdict be given whereby the jury might, if they chose, find a verdict for the plaintiff and against Roblyer, the tenant, and for the other defendants. This the court declined to give. This statement very clearly indicates the errors which inhere in the record.

A learned discussion respecting the law of partnership, the powers of partners, and the law of agency which controls in such organizations, would be profitless. It is enough to announce the general rules which control these matters. It is, and always has been, the law that one partner can bind his co-partner only by those contracts which are within the scope of the business of the firm, or so closely related to it as to permit third parties to lawfully assume authority to execute them. It makes no difference that the contract was not within the purview of the business, provided there be specific antecedent authority, or there be proof to show that, after the contract has been entered into, the co-partner has ratified and confirmed what has been done. All the books are clear on this subject, and it is only by way of definition and the application of this law to particular states of facts that there has been any modification in the statement of the rule. We do not undertake to state it in its entirety, nor otherwise than with a general sort of accuracy which will not be misleading. It is equally clear that, where a plaintiff brings a suit on a contract which is not within the scope of the business of the firm, the plaintiff is bound to offer evidence to show authority on the part of the signing partner, or facts from which a ratification can be presumed. The burden is on the plaintiff, which must be measurably sustained before she can be permitted to go to the jury. The evidence need not necessarily be direct or positive, but there must be something from which the jury may lawfully have the right to assume the existence of the authority, or a subsequent ratification. These matters may not be proven, however, as seems quite clear from the cases by the declarations of the signing partner, who,...