Dickson & Mabry v. Alexander, 29 N.C. 4, 7 Ired. 4 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 4, 7 Ired. 4

DICKSON AND MABRY vs. THOMAS H. ALEXANDER & AL.

If ons partner purchase goods, ostensibly for the firm, but in truth for himself, the firm is bound in the same manner as it would be, if the partner had borrowed money for the firm and misapplied it.

The case of Wharton v. Wooclburn, 4 Dev. and Bat. 507, cited and approved.

Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term, 1846, his Honor Judge Peakson presiding.

The action is assumpsit for goods sold and delivered, and was tried on the general issue. The facts were, that the defendants, Thomas II. Alexander, Joseph Alexander, and Abner Alexander, entered into partnership in a fishery in Tyrrell County; and, by the agreement, each of them was to furnish certain things, needful to the prosecution of the business, as parts of his stock therein. The plaintiffs were merchants in Virginia,.with whom the defendants had not before dealt, and who had no knowledge of the particular stipulation between the defendants just mentioned. In order to procure some of the articles, which Thomas H. Alexander was to supply, he ordered them from the plaintiffs 'in the name of the firm, and the plaintiffs filled the order to the value of $274 65 ; and they charged the goods to the firm, and forwarded them, and they came to the use of the firm.

The question upon the trial was, whether the defendants, Joseph and Abner, were liable to the plaintiffs. The Court held that they were ; and from a judgment against them, they appealed.

A, Moore, for the plaintiffs.

Heath, for the defendants.

- Ruffin, C. J.

The opinion of his Honor is sustained by the direct authority of Wharton v.. Woodburn, 4 Dev. and Bat. 507. It is there laid down, in conformity with settled principles, that if one of the partners purchase goods ostensibly for the firm, but in truth for himself, the firm is bound in the same manner as it would be, if the partner had borrowed money for the firm, and misapplied it. If it were not so, there would be no security in dealing with partnerships. How could these plaintiffs know, that Thomas H. Alexander, was breaking his contract with the other parties, and was not buying for the firm, when he said that he was, and purchased in their name '! It is a question of loss, between innocent persons; and it is plain, which of them should bear it. His co-partners trusted Thomas H. Alexander; but the plaintiffs did not. They trusted the firm, upon an application in the name of the firm ; and they have a right to look to every member of it for their debt.

Per Curiam, Judgment affirmed.