Opinion
03-13-1812
Garland v. Davidson
Wirt, for the plaintiff in error. Williams, contra.
SYLLABUS
In an action of debt against William Walker and Clifton Garland, merchants, and partners, the declaration described the bond as executed by Walker, for himself and Garland. The plea of " payment" was put in by Garland alone as surviving partner. Verdict and judgment for the plaintiff; to which a writ of supersedeas was awarded by a judge of this court.
Wirt, for the plaintiff in error. This is almost the case of Shelton v. Pollock & Co., 1 H. and M. 423. There is no averment in the declaration that Walker & Garland bound themselves to pay the money. An undertaking by inference or implication is not sufficient: there must be a positive averment. One partner cannot bind another by his deed.
New doctrina placitandi, p. 180, Styles 91.
Lex Mercatoria Americana, p. 457, Harrison v. Jackson; 7 T. R. 207, Gerard v. Basse, 1 Dallas, 119.
Williams, contra. This is not like the case of Shelton v. Pollock & Co., in which no plea was filed, but judgment was entered in the clerk's office. The plea of " payment" admits the execution of the bond. The court, therefore, will not inquire whether Garland sealed it or not. The plea admits that Walker was authorized to seal it for him. In 7 T. R. 207, the plea was non est factum.
Wirt, in reply. The declaration itself does lay a cause of action. On the face of the declaration, one partner is said to have given bond for the other; which he could not do, so as to bind him.
OPINION
Roane Judge
Wednesday, March 18th, Judge Roane delivered the court's opinion.
" The court (not deciding any other question occurring in this case) is of opinion that the declaration is defective in this, that it is not expressly averred therein that the appellant Clifton Garland, or the firm of Walker & Garland, promised to pay the debt in the declaration mentioned; but that William Walker only so promised. The judgment is, therefore, to be reversed, and entered for the appellant."