Opinion
The appellant brought assumpsit against the appellee to recover damages for a breach of warranty contained in an instrument in writing set out in the declaration.
That instrument included evidence of a sale of a horse, and contained a warranty as to the qualities of the animal, and was signed Levi Dillon and Sons, [seal.] ”
The appellant assumed that Levi Dillon alone was liable, as a matter of law, on this instrument—he having signed it.
The appellee filed his plea in abatement alleging that the supposed promises in the declaration mentioned were made by a firm of partners, composed of Levi Dillon, John Harding, James Railsback, Ellis Dillon and James 0. Duncan, all of whom were still living, and that the horse named in the instrument set out in the declaration was at the time of the sale thereof, the property of said partnership, and not the separate property of said Levi Dillon.
The plaintiff (appellant) filed his replication denying the plea, and upon the issue thus made the case went to a trial by jury, resulting in a verdict, and judgment thereon, in favor of defendant, the appellee, to reverse which the plaintiff, appellant, has brought the record here by appeal.
The only question is upon the rulings of the court in admitting evidence of the partnership and of the circumstances attending, and preceding the execution of the said instrument in writing and in giving and refusing instructions on the same subject.
*480It appears from the proof that said firm of Levi Dillon & Sons was .engaged in the business of importing and selling Norman horses; that in making sales it was necessary to warrant the qualities of the particular animals sold; that the firm had prepared a printed form to be used in such cases, for a bill of sale without such warranty; that this waá bound in books or pads containing forty or fifty sheets; that all the members of the firm were familiar with this form; that it was customary to use it in all cases where sales were made, and that whichever member of the firm made a sale, he would give the purchaser a bill of sale and warranty on one of these blanks, signing the firm name, Levi Dillon & Sons; that it Avas understood this would be done in all such cases; and that Levi Dillon made the sale and executed the instrument in this case, as, in fact, he did in most cases. The appellant objected to this proof, and insists now that it Avas not relevant or sufficient to support the plea. We think otherAvise. It may be admitted that it is the rule in this State that partners can not bind the firm by deed; and ordinarily a partner, in making and signing such an instrument of writing in the firm name, binds himself only, and not the firm.
But it is also the rule in this State that if the other, part-. ners gave their parol assent previous to the execution of the AAwiting, that .it should be under seal, it Avóuld bind them, though they Avere absent Avhen it was signed. Wilcox v. Dodge, 12 Brad. 517; Peine v. Weber, 47 Ill. 41: Walsh v. Lennon, 98 Ill. 27.
Tested by this rule, it is clear that there Avas evidence enough to show that the instrument here involved was binding on all the members of the firm.
It is apparent also that this instrument would have been just as effective without a seal for the purpose intended, and there are many authorities in support of the position that in such case, when the contract in the instrument is within the power of a partner, it would be binding on the firm, had the seal been omitted. The seal shall not Adtiate such an instrument, otherwise valid as to all the firm. Story on *481Partnership, Sec. 122, and citations found in the principal opinion in Walsh v. Sinnon, supra.
While this view of the matter seems to be very persuasive and forcible, it is perhaps in advance of the rule as it is to be gathered from the adjudications in this State.
We are of opinion the judgment of the Circuit Court should be affirmed.