Tillier v. Whitehead

*Tillier v. Whitehead. Authority of partners. One of two partners may give authority to a clerk to act in the name of the firm. This was a feigned issue, to try whether the defendant had a legal authority to use the plaintiff’s name, in the acceptance, drawing and indorsement of bills of exchange, and promissory notes. The case was this : Rudolph Tillier and Clement Biddle entered into articles of agreement, on the 30th of January 1783, by which a special partnership was established between them. The defendant Whitehead was employed as a clerk by Biddle, in his general transactions ; and a memorandum, written and subscribed by Biddle alone, under two firms, that is “ Clement Biddle & Co.,” and also “ Clement Biddle & Co. & Rudolph Tillier,” was lodged in the bank; declaring that Whitehead’s acceptances, indorsements and drafts, under those firms, were good and binding on the parties. It appeared, accordingly, that Whitehead, as well as Biddle, had used the firm of “ Clement Biddle & Co. & Rudolph Tillierand an advertisement, sub scribed and published by Tillier himself, was read, in which notice was given, that “ he had no connection with any other mercantile house, except that known under the firm of ‘ Clement Biddle & Co. & 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 presented notes drawn by Whitehead in the firm of “ Clement Biddle & Co. & Rudolph Tillier,” and that, on such occasions, Tillier referred him to Whitehead for payment. It appeared also, that Whitehead had received the proceeds of some damaged tea, which Tillier had sent to the city auction, giving a receipt in the name of “ Clement Biddle & Co. & Rudolph Tillier that, in consequence of this, Tillier directed his clerk to forbid Whitehead’s meddling wdth any more of his money; and that, sometime afterwards, Tillier desired Whitehead to quit his counting-house, declaring that he had nothing to do with him. Two questions were stated for the plaintiff: 1st. Whether Clement Biddle and Rudolph Tillier were partners generally, or only for certain specific purpose ? and 2d. Whether one partner can devolve over the right of using the firm name, without the knowledge and concurrence of the other ? Ingersoll, for the plaintiff. Bradford, for the defendant. [MAJORITY] To the first question it was answered by the defendant’s counsel, and allowed by-the Court, that the articles of copartnership, 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 respect to the second question, it was unanimously resolved by the Court, that one of two partners may give an authority to a clerk, under the firm name of the house; and that the clerk may, in consequence thereof, accept bills, and sign or indorse notes, in the name of the company. And it was said by McKean, Chief Justice, that this case could not be properly compared with the case of an attorney, ’’’without power of substitu*270] tion: for the attorney cannot exceed the letter of his authority, being nothing more than an agent himself ; 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 interest, Verdict for the defendant. See Gill v. Kuhn, 6 S. & R. 333; Forrest v. Wain, 4 Yeates 337. See Gerard v. Basse, ante, p. 119, and the note; and see also Baird v. Cochrane, 4 S. & R. 397; Salmon v. Davis, 4 Binn. 375; Hourquebie v. Girard, 2 W. C. C. 212. In Moddewoll v. Keever, 8 W. & S. 65, Chief Justice Gibson, without directly pronouncing on the authority of Tillier v. Whitehead, as a precedent, says that each partner is, doubtless, a principal, so far as regards his personal interest in the concern; but an agent aa regards the interests of his associates; he would scarce seem, therefore, to be warranted, by principles drawn from analogy, in committing the stewardship of their property to a stranger