ment, such as all were in this case, is any evidence of what the real nature of contract was, while the receipt given by plaintiff, if it is in no manner explained, is certainly evidence entitled to great weight as showing that the contract was in fact as claimed by defendant.

[5] The instructions were clearly erroneous, and as, under proper instructions, there was ample evidence, if believed, to support a verdict for defendant, the judgment and order appealed from should be, and they are, reversed.

INMAN v. BROOKMAN et al.

Under Civ. Code, § 1740, providing that every general partner has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing, a partner had authority to authorize a clerk employed by it to execute a note in the firm name to obtain money for use in the firm business.

If one of a firm had authority to borrow money for the firm, that the other partners had no knowledge of the loan until long thereafter would not preclude them from being liable on the note as copartners.

(Opinion filed, December 11, 1911.)

Appeal from Circuit Court, Clay County. Hon.-R. B. TRIPP, Judge.

Action by D. M. Inman against E. D. Brookman and others. From a judgment for plaintiff, and an order denying a motion for a new trial, certain defendants appeal. Affirmed.

Payne & Olson and Thomas Sterling, for appellants. John L. Jolley and French & Orvis, for respondent.

CORSON, J. This is an appeal by the defendants E. D. and S. E. Brookman and John R. Barrett from a judgment entered in favor of the plaintiff and from the order denying a new trial. It is alleged in the complaint, in substance, that the above-named defendants, with Robert L. Wight, on the 23d day of September, 1993, and for a number of years prior and subsequent thereto, were copartners doing business at Vermilion and at De Smet, in the state of South Dakota, under the firm name and style of the

Vermilion-De Smet Milling Company. It is further alleged that on the said 23d day of September, 1903, the defendants, by E. J. Wight, their agent thereunto authorized, made and delivered to the First National Bank of Vermilion their promissory note, bearing date of said day, whereby they promised to pay to the First National Bank of Vermilion, January 1, 1904, $2,000, with interest at the rate of 8 per cent. per annum until paid. It is further alleged that before the commencement of this action said note was indorsed and transferred to the plaintiff, and that certain payments, specifying them, were made thereon, and the plaintiff demands judgment against the defendants for the sum of $1,766.25, with interest on $1,991.25 at 8 per cent. per annum, and costs.

The three appealing defendants by their answer admit the allegation that they and Robert L. Wight were partners as alleged in the complaint, deny that Elmer J. Wight was authorized by the defendants to make and deliver the promissory note described in the complaint, and make the statutory denial of the other allegations as to the payments made and balance due alleged in the complaint. The defendant Robert L. Wight interposed no answer to the complaint, and the court directed a verdict as against him and defendant Barrett, and the jury, under the instructions of the court, found in favor of the plaintiff and against all the defend

ants.

It is disclosed by the evidence that the firm, consisting of the four persons named, was engaged in the milling business both at Vermilion and De Smet; that three of the partners resided at Vermilion; that the business at De Smet was conducted by John R. Barrett, who resided at De Smet, and Elmer J. Wight, son of the partner Robert L. Wight; that in September, 1903, the son, Elmer J. Wight, went to Vermilion and had a conversation with his father, Robert L. Wight, in relation to obtaining further means for carrying on the business at De Smet, at which time the father states what occurred as follows: "He (Elmer J. Wight) came down from De Smet on the 23d day of September, 1903, and said they needed more money at De Smet for buying grain for the milling business, for milling purposes, etc.; and he suggested to

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me he thought he could get it of Inman's bank, and I told him, 'All right,' he could go down and get it and sign the firm name. He was working at De Smet in the milling business, and John R. Barrett, a member of the same firm, was working there. S. E. Brookman and Edgar Brookman were in charge of the business of the Vermilion-De Smet Milling Company at Vermilion. I never had any immediate control of the business at De Smet, and never worked up there any. The Vermilion-De Smet Milling Company did business at De Smet with the De Smet National Bank."

In regard to the transaction Elmer J. Wight testified as follows: "I am the son of Robert L. Wight, and was living in September, 1903, at De Smet, S. D., and working for the VermilionDe Smet Milling Company. The company banked with the De Smet National Bank. I first saw Exhibit B, being a note for $2,000, September 23, 1903. I signed the name, 'Vermilion-De Smet Milling Company, by E. J. Wight, a Member of the Firm.' * * * I left Exhibit B, when I signed it, at the First National Bank in Vermilion, and I got that draft, Exhibit C, for it. I took that draft with me to De Smet and deposited it in the De Smet National Bank. * * * I left it [the draft] at the bank, the De Smet National Bank. The name 'E. J. Wight,' written across the back of the draft, Exhibit C, is in my handwriting. It is my name. I left the draft, with a deposit slip, in the De Smet National Bank. * * I know John R. Barrett. He was at De Smet, S. D.., at the time I got this money at Vermilion and made this deposit at De Smet. I had talked with John R. Barrett about borrowing money from Inman's bank before borrowing that money. The talk was the day before I came down here.

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Mr. Barrett and I were talking about needing more money in the business, and I suggested to John that perhaps we could get it from Inman at Vermilion, and he said, 'You go down and see if you can get it.' Q. You say it was checked out? A. Checked out. The checks were issued by the Vermilion-De Smet Milling Company, and that name was signed to the checks. John R. Barrett and myself used to draw checks during the month of September, 1903, and did all the time we were there."

[1] Numerous errors are assigned as to the admission and rejection of evidence, and the instructions of the court; but the correctness of these rulings depends on the view we take of the case as to the authority of Elmer J. Wight to sign the firm name to the note sued upon, under the direction of his father, a member of the firm, and the direction of Barrett, another member of the firm, and in view of his position and manner of conducting the business in connection with Barrett at De Smet. It is contended by the plaintiff, in support of the judgment of the trial court, that E. J. Wight, by the authority vested in him by R. L. Wight and John R. Barrett, two of the partners, was fully authorized to borrow the $2,000 and sign the name of the firm to the note, and that, the money being applied to the business of the milling company, all of the partners became thereby liable for the payment of said note. This contention is controverted by the appealing defendants, who contend that while Robert L. Wight, as a partner, would have been authorized to borrow the money and execute, in the firm name, the note sued upon in this action, he could not, as such partner, delegate the authority to his son, Elmer J. Wight, and that the other defendants, therefore, were not liable upon the

note.

We are inclined to take the view that the plaintiff is right in his contention, and that Robert L. Wight, as one of the partners, was not only authorized to borrow the money and sign the firm name, but that his authority as such partner enabled him to confer authority upon Elmer J. Wight to borrow money and execute the note in the name of the firm, and that thereby all the partners became liable for the payment of the same. Section 1740, C. C., provides: "Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartners by an agreement in writing."

This section embodies substantially the common law upon the subject of the authority of partners, and is a copy of section 1300 of the Civil Code as proposed by the code commissioners of New

1911.]

INMAN v. BROOKMAN et al.

365

York. The commissioners in their note to that section cite a num ber of English cases and one American case, Wilkins v. Pearce, 5 Denio (N. Y.) 541, as the basis for the section, and the latter case seems to be a leading case upon the subject as to the powers vested in partners. In that case that learned court says: "By the act of entering into a copartnership, each of its members becomes clothed with full power to make any and every contract within the scope and limits of the partnership business. All such contracts will therefore be absolutely binding upon the several members. This power is incident to the partnership relation, and must exist, in defiance of expostulations and objections, while the relation endures." It appears in that case that one of the copartners dissented from an agreement which one of the partners was making to indemnify a third person for accepting for the accommodation of the firm a draft drawn upon him by such partner, and it was contended by the defendant in that case that inasmuch as he objected to his partner entering into the agreement at the time it was made, the agreement was not binding upon him and he was not liable under it. The court, however, held that he was bound by the agreement, notwithstanding his dissent at the time the agreement was entered into.

It is said in 30 Cyc. p. 508, by the learned author, under the head of Partnership: "One partner has implied authority to appoint an agent to make and indorse negotiable paper for the firm" -citing a number of authorities. To the same effect is Mechem on Agency, §§ 45, 70. In the late case of Parker v. Parker, 80 S. W. 209, it was held by the learned Court of Appeals of Kentucky that "a member of a firm, having authority to borrow money for its benefit, has authority to direct another to borrow money for it." In its opinion the court says: "The evidence tends to show that Miss Dora Farris conducted the business of the firm at their office in London, Ky. She made the deposits in bank and drew the firm's checks thereon. The firm's name was signed to She was requested by Ed Parker to the note by Miss Farris. borrow money from his wife for the firm, which she did, and The money was used in the signed the firm's name to the note.