Tillier v. Whitehead
1788.
TILLIER verʃus WHITEHEAD.
T
HIS was a feigned iffue to try, whether the Defendant had a legal authority to ufe the Plaintiff's name in the acceptance drawing, and indorfement of bills of exchange, and promiffory notes. The cafe was this : Rudolph Tillier, and Clement Biddle entered into articles of agreement on the 30th of January 1783, by which a ʃpecial Partnerfhip was eftablifhed between them. The Defendant Whitehead was employed as a clerk by Biddie in his general tranfactions ; and a memorandum, written and fubfcribed by Biddle alone, under two firms, that is, “ Clement Biddle and Co ” and alfo “ Clement Biddle and Co. and Rudolph Tillier, ” was lodged in the Bank ; declaring that Whitehead‘s acceptances, indorfements, and drafts under thofe firms, were good and binding on the parties. It appeared, accordingly, that Whitehead, as well as Biddle, had ufed the firm of “ Clement Biddle and Co. and Rudolph Tillier;” and an advertifement, fubfcribed and publifhed by Tillier himfelf, was read, in which notice was given, that “ he had no connection with any other‘‘mercantile Houfe, except that known under the fims of ‘‘ Clement
" Biddle and Col. and Rudolph Tillier.’’ There was not any proof, however, that Tillier knew of the authority which had been left by Biddle at the Bank ; but a clerk of the Bank proved that he had prefented notes drawn by Whitehead in the firm of “ Clement Biddle and Co. and Rudolph Tillier, ” and that on fuch occafions Tillier refered him to Whitehead for payment. It appeared alfo that Whitehead had received the proceeds of fome damaged tea which Tillier had fent to the city auction, giving a receipt in the name of ‘‘ Clement Biddle and Co. and Rudolph Tillier; ’’ that, in confequence of this, Tillier directed his clerk to forbid Whitehead's medling with any more of his money ; and that fometime afterwards, Tillier defired Whitehead to quit his counting houfe, declaring that he had nothing to do with him.
Two queftions were ftated for the Plaintiff– 1ft, Whether Clement Biddle and Rudolph Tillier were partners generally, or only for certain fpecific purpofes? and 2dly, Whether one partner can devolve over the right of ufing the firm, without the knoweldge and concurrence of the other?
To the firʃt queftion it was anfwered by the Defendant's Council, and allowed BY THE COURT, that the articles of Co-partnerfhip, being res inter alios acta, the limitations could not be known, and, therefore, ought not to affect the Defendant, if he acted under a legal authority.
With refpect to the ʃecond queftion, it was unanimoufly refolved by the court, that one, of two partners, may give an authority to a clerk under the firm of the houfe ; and that the clerk may, in confequence thereof, accept bills, and fign, or indorfe, notes, in the name of the company. And it was faid by M‘KEAN, Chieƒ Juʃtice, that this cafe could not be properly compared with the cafe of an
1788.
attorney without power of fubftitution ; for, the attorney cannot exceed the letter of his authority, being nothing more than an agent himfelf. But each partner is a principal ; and it is implied in the very nature of their connection, that each has a right to depute and appoint a clerk to act for both, in matters relative to their joint intereft.
Verdict for the Defendant.
Ingerʃoll for the Plaintiff–Bradƒord for the Defendant.