George W. Hickman & Co. v. Branson

Headnote

A joint judgment entered against the individual members of a late firm, on a bond and warrant of attorney executed for them by one of the members, but without their proper authority, is neither binding on them, nor on the member executing the bond and warrant of attorney.

This was a rule, obtained by George W. Hickman & Co., assignees of William E. Torbert & Co., to show cause wherefore a judgment entered by confession, and an execution issued thereon, at the suit of Samuel Branson against the late firm of William E. Torbert & Co., should not be set aside. It appeared by the affidavit and evidence for the plaintiffs in the rule, that the bond and warrant of attorney on which the judgment was entered, was executed in the name of the late firm of William E. Torbert-and William L. Torbert by William, JE. Torbert, but that he had no authority to sign and execute the same so as to bind the firm, or William L. Torbert, the other member of it, as he had no authority from the latter to sign and execute the bond, or to confess the judgment against him individually, or against the late firm of William E. Torbert & Co., which had been previously dissolved on the 10th of March, 1857, and William E. Torbert, as the duly constituted successor of the firm, having made a bona fide assignment of the debts due it, on the 26th of the same month, to the firm of George W. Hickman & Co., the latter engaging to collect the debts due to and pay the debts due from the late firm of William E. Torbert & Co., of which they were also creditors at the time of the assignment made to them. For the defendant in the rule, it was proved that the assignment in question was made in consideration of the relinquishment of the claims of such of the creditors of the late firm of William. E. Torbert & Co. as were then ' present, but that the defendant, who was a creditor of the firm, was not present at the meeting, and that William L. Torbert had stated,

since the dissolution of the firm, that William E. Torbert had authority from him to sign the bond and warrant of' attorney to the defendant, hut without saying what was the nature of his authority. Also, that certain creditors of the firm were preferred, and had been paid in full, in consideration of which they had assented to the assignment, and others under it were to he paid unequal dividends, some amounting as high as to ninety per cent, of their demands.

For the plaintiffs, it was argued that; an individual member of a firm cannot bind it by deed, unless authorized to do so by deed, and as the successor of the firm of William •E. Torbert & Co., William E. Torbert had full power and authority to make the assignment in question to the firm of George. W. Hickman & Co. Story on Partn., sec. 122; 5 Hill, 107 .

For the defendant, it Was denied that he had authority to make the assignment, but the same, it was contended, was fraudulent and void as to the defendant, who had not assented to it, because it preferred creditors, and debts not then due, as the claim of Hickman & Co., to the defendant’s debt, which was then due, and because it unjustly discriminated between the claims of creditors, and made an unfair and unequal distribution among them.