Taylor v. Felder
| Decision Date | 20 December 1907 |
| Docket Number | 742. |
| Parties | TAYLOR v. FELDER. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
If a person who is at the same time agent for a corporation and member of a partnership, makes, in his dual capacity, a contract between the parties, knowledge possessed by him though not actually disclosed, will be imputed to both parties. However, if one, though an agent of the corporation makes a contract with the corporation on behalf of the partnership of which he is a member, dealing in the transaction with other officers of the corporation and not through himself alone, his undisclosed knowledge will not be imputed to the corporation as notice. The law will not presume that the person occupying such a dual relation dealt with himself alone in making a contract between the partnership and the corporation, and the burden of proving that he did so act is upon the person so asserting.
[Ed Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1748-1760.]
Although one partner exceeds his power as a member of the firm, the other partner will nevertheless be bound by the act if he ratifies it.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 289-291.]
"Where a man doeth that which he is authorized to do and more, there it is good for that which is warranted and void for the rest." If a partner, having authority to bind the partnership only for liabilities not exceeding a certain sum, do nevertheless borrow money in excess of that sum in behalf of the firm and give note for it, the note is binding on the partnership and the members thereof to the extent of the authority the partner had.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Partnership, §§ 242-247.]
Refusal to direct a verdict is not ground of error; but, if the evidence as a whole demands a verdict in a plaintiff's favor for a certain sum, the trial judge should upon timely written request charge the jury that, if they believe the evidence, they should find for the plaintiff in that sum.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 500.]
Error from City Court of Americus; Chas. R. Crisp, Judge.
Action by R. G. Taylor against T. J. Felder. Judgment for defendant, and plaintiff brings error. Reversed.
Where the evidence as a whole demands a verdict for plaintiff for a certain sum, the court should on timely written request charge the jury that, if they believe the evidence, they should find for plaintiff in that sum.
Taylor sued Felder as the surviving partner of the firm of W. A Mathews & Co. upon a note executed by Mathews, the deceased partner, in the firm name to the Piedmont Loan & Banking Company and duly transferred to the plaintiff. The jury returned a verdict for the defendant. In overruling a motion for a new trial filed by the plaintiff, the trial judge states the case as follows:
"On or about 1st day of August, 1897, W. A. Mathews and Thomas J. Felder entered into a copartnership in parol, which partnership continued in parol until July 25, 1898, at which time the partnership agreement was reduced to writing. The written agreement of the copartnership embodied only the exact conditions of the original verbal contract. The copartnership was formed for the purpose of carrying on in Atlanta the business of buying and selling bonds, negotiating loans, lending money, and conducting a private banking, investing, and brokerage business of a general character for five years, unless previously discontinued. Under the partnership agreement, neither partner was to incur any partnership liability in excess of $1,000 without the consent of the other partner. The evidence discloses that W. A. Mathews, the senior partner, was cashier, director, and the controlling or managing officer of the Piedmont Loan & Banking Company. That the partnership of Mathews & Co. and the Piedmont Loan & Banking Company occupied the same office. That on the 25th day of June, 1898, W. A. Mathews made and executed a note in the name of W. A. Mathews & Co. for the sum of $1,010, and discounted the note to the Piedmont Loan & Banking Company. The testimony of this defendant is that he knew nothing of the
execution of the partnership note for $1,010, did not know that it was in existence, until five or six years after its execution or until after the Piedmont Loan & Banking Company had gone into the hands of a receiver, and he was notified by counsel for the receiver that he held such note. Felder's testimony is that he never ratified or consented to the execution of the note for $1,010, and received no benefit therefrom. That on the 3d day of November, 1898, the partnership of W. A. Mathews & Co. was dissolved, and the dissolution agreement purported to contain a list of the liabilities of the partnership (furnished by Mathews), and it fails to include the note sued on. John W. Mathews testified that the defendant, Felder, knew of the execution of the note sued on, and received the benefit from the proceeds of said note; the proceeds being used in purchasing certain stock of the Piedmont Loan & Banking Company, for the partnership of W. A. Mathews & Co. The record discloses that W. A. Mathews was indicted by the grand jury of Fulton county, Ga., charged with embezzling the funds of the Piedmont Loan & Banking Company, and that W. A. Mathews was never tried on said indictment, but died with the case still pending against him.
The defendant contends in this case that the note sued on was in violation of the partnership agreement, and that the payee of the note knew this fact, and therefore that he is not bound by the note; that he never authorized it or received any benefit from it. The defendant contends that W. A. Mathews, being the cashier and controlling officer of the Piedmont Loan & Banking Company, had knowledge of the violation of the partnership agreement, and that his knowledge was chargeable to the Piedmont Loan & Banking Company. The plaintiff contends that W. A. Mathews, being an officer of the bank and a member of the partnership, had a conflicting interest, and any knowledge that he might have would not be chargeable to the bank, and that the bank would be an innocent holder. Plaintiff further contends that in any event the plaintiff would be entitled to recover to the amount of $1,000 and interest, and that the defendant would not be entitled to have any relief, except as to the excess over the $1,000 of the principal of the note.
The court has carefully considered the matter, and there is no o conflict in the testimony that, under the partnership agreement, neither partner was to incur any liability in excess of $1,000. The testimony would authorize the jury to believe that W. A. Mathews was cashier, director, and controlling officer of the Piedmont Loan & Banking Company, and that Felder never ratified the execution of the note or received any benefit from same. The court is of the opinion that any knowledge Mathews might have of the note being in violation of the partnership agreement is chargeable to the banking institution. See McCord v. Callaway, 109 Ga. 796, 35 S.E. 171; Morris v. Ga. L. S. & B. Co., 109 Ga. 12, 34 S.E. 378, 46 L.R.A. 506; Brobston v. Penniman, 97 Ga. 527, 25 S.E. 350. The court is of the opinion that one partner is bound by the acts of another partner, whether he receives the...
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