Opinion
June 1809.
The defendant was a partner in the late firm of Adam Shepherd Co. The ground of this action was a note in these words: "Due James Russell three hundred and two dollars, being in part of a note settled this day, given by James Robertson to Stephen Hopkins, dated 4th of March, 1802; the above account being principal in part, and interest up to this day." Signed, "Robert Drake, for Adam Shepherd Co., February 1, 1806."
The note having been proved by the subscribing witness, Drake was offered as a witness, and, upon being objected to, OVERTON, J., said he was not a competent witness to prove his own agency as against one of the firm. Jones, the defendant, and James Robertson, were acknowledged to be partners of that firm. An agency may be proved by parol, and though Drake, if an agent, might prove his agency in demands of the company against others, he was inclined to think the rule did not apply in a case situated as the present.
9 Ves. Jr. 250; 2 Johns. 577; Sch. Lef. 31; 2 Johns. 189; 2 Dall. 246; 2 Mass. l06; 1 Caines, 167.
It was then proved that he was the agent of the concern in settling the books and all other business respecting the iron-works copartnership.
The defendant's counsel then contended that it appeared from the face of the note to be a private debt of Robertson's that was settled, and that Drake had exceeded his authority. Drake proved the copartnership had been dissolved previously to the giving of the note. That Robertson who had been one of the partners wrote to him to settle it. It was insisted that the letter should be produced.
There is no necessity for that. Drake did not know whether it was a company debt or not, but supposed it was, and that Hopkins had no account on the books.
An individual of a company cannot charge his private debts to the company without their consent; nor can he bind the firm by contract after the dissolution.
Mont on Set Off, 23, c.; 2 Caines, 246; 2 Johns. 300; 2 Esp. 524; 7 East, 210; 1 Day, 136; 8 Ves. Jr. 54; Johns. 251.
The same rule holds with respect to a general agent. There must be proof that the debt due to Hopkins was on account of the company, otherwise this action must fail. Impeys, Pr. 205, and Chitty 24, were referred to.