Present; Pereira J. and De Sampayo A.J.
MIKAMPILLAI r. PASSE & CO.
117—D. C. Colombo, 34,Wl.
Partnership-—Power of one partner to bind the other's by granting pro-missory notes on behalf of the firm—Trade.
In the case of a trading firm one partner has in law the powerto bind the bther partners by granting on behalf of the firm pro-missory notes for the purposes that fall within the scope of theordinary business of the firm. In the case of other partnershipsone partner has no such power without express or implied authority.Authority would be implied if the other, partners by their conductled the public to believe that each partner had the authority ofthe firm to grant notes, or if it be proved that it was usual ornecessary in the case of companies generally instituted for purposessimilar to those of the partnership in question to issue promissorynotes for the purpose of carrying on their business.
The word “ trade ” has now the technical m^Aning 0f buyingand selling with or without profit, although it is in .some of theolder enactments used in a wider sense.
^ j^HB facts appear iu the judgment.
Elliott, for plaintiff, appellant.
A. Drieberg, for defendants, respondents.
. Gur. adv. vult.
June 10, 1913. Pereira J.—
The two defendants were members of the firm of Passe & Co., andthe question in this case is whether D. A. Passe, the first defendant,had any right to bind the second defendant as a member of the firmby granting to the plaintiff the promissory note sued upon by him.If the firm were a trading firm, there could be no question that thefirst defendant would have full power to incur liability on behalfox the firm as a party- to a bill or note for any purpose of the firmthat fell within the scope of its ordinary business, and that thesignature by him of the firm’s name would bind the second defend-ant equally with himself; but on the material before me I am notprepared to hold that the firm of Passe & Co. was a trading partner-ship. Although the word “ trade ” is used in some legislativeenactments to mean or include an art, craft, or mystery, it appearsto have now the technical meaning of buying and selling. Thus" farming,” as observed by Willes J. in the case of Harris v. Amery,1.“isa business though not a trade, and banking is not strictly atrade.” In Grainger v. Gough 3 Lord Davey observed, as follows:” Now, wHat does one mean by a trade or the exercise of a trade?i h. R, 1 C. P. 1481154.3 (1698} A. C. 895, $45.
( 311 )
Trade in its largest sense is the business of selling, with a view to IMS.profit, goods which the trader has either manufactured or himself r ,
purchased. ” As regards the matter of profit, Lord Coleridge C. J. in
In re the duty on the Estate of Incorporated Council of Law Reporting1MtrwHpflto
observed that although it might be true that in the majority of & Go.eases the carrying on of a trade did, in fact, include the idea of profit,yet the definition of the mere word “trade” did not necessarilymean something by which a profit was made. If then the defend-ant’s firm was not a trading partnership, it is necessary that, inorder to entitle him to succeed, the plaintiff should establish thatthe first defendant had authority to bind the firm by .means ofpromissory notes. This authority may, of-course, havabbeen Itftherexpressed or implied. Clearly the first defendant had no suchexpress authority. As I read the deed of partnership, it prohibitsthe granting by one partner, in the name of the firm, of promissorynotes, and the deed speaks of such an act as the granting of notesas a “ breach of the provisions ” of the clause containing the pro-liibition. As regards implied authority, there would, of course, besuch authority if the second defendant by his conduct led the publicinto the belief that the first defendant had the authority of the firmto grant promissory notes, but there is no evidence to show that thesecond defendant was guilty of such conduct at all'. True, the firstdefendant had at one time granted certain notes in the name of thefirm, but there is nothing to show that £he second defendant stoodby while the first defendant did so, or that even the first defendantdid so to the knowledge of the second defendant. Authority wouldalso be implied if, as the District Judge observes in view of thedecision in the case of Dickinson v. Valpy,4 it was usual or necessaryin the case of partnerships like the defendants’ firm to issue pro-missory notes. In that case Bayley J. observed: “ The questionwhich could be submitted to the jury was whether companiesinstituted for similar purposes had constantly been in the habit ofdrawing and accepting bills, or whether it was absolutely necessaryto do so for the purpose of carrying on the concern. ’ ’ In the presentcase there is evidence that the defendant company and a companydoing similar business, of which the plaintiff is the proprietor, haveoccasionally, for particular purposes, issued promissory notes, butthere is no evidence that (to use the words of Bayley J. cited above)companies generally instituted for similar purposes have constantlybeen in the habit of issuing promi«96ry notes, or that it wasabsolutely necessary to do so for the purpose of carrying on theirbusiness.
I would affirm the judgment appealed from with costs.
De Sampayo A.J.—I concur.
* 10 B. 6C.128; Eng. Rep., ml. 109, p. 399.
‘ 22 Q. B. D. m, 293.
MIRAMPILLAI v. PASSE & CO