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upon all those five merchants, and one of them accept it, the others are not bound.(b)

It has been decided, that where several persons employ a broker to buy one lot of goods, each being to take an aliquot part, but without any mutual interest in the re-sale, this does not make them partners.(c)

by became joint-partners. In these cases, as well as in the one before us, the common agent must be considered as representing separately, the rights of each individual, according to his interest in the subject." Kent, C. J. "How far are the defendants responsible, in consequence of their share in the ship? They insured separately; and the abandonment was made to them separately, because it was made in the capacity in which they stood as insurers. They became owners of an aliquot part, in the ratio which their separate subscription bore to the whole sum insured; and it required a special agreement between the several insurers to change their separate character and make them joint partners and security for each other. Nothing can be more plain and reasonable, than that the character in which they started, should continue until changed by their act and consent. No such act appears in the present case. They accepted the abandonment in the capacity in which they stood as insurers. Their responsibility as owners was as distinct as their responsibility as insurers. Their uniting in a letter to Mr. H. is no evidence of co-partnership, or that they meant to engage for each other. They united in making the same person agent for all. To make separate underwriters responsible for each other, and to adjudge them partners by mere operation of law, and in consequence of an abandonment which could not be resisted, would be destructive of that species of insurance. It would be manifestly unjust, for no person ought to be bound without his knowledge and assent." The United Ins. Co. v. Scott, 1 Johns. Rep. 106; see Post v. Kimberley, 9 Johns. Rep. 470; 1 Liv. Pr. & Ag. 88, 91.||

(b) Pinckney v. Hall, Salk. 126; 1 Ld Raym. 175. (c) Hoare v. Dawes, Doug. 356. Although this was not a case between the vendors and vendees, yet the point here stated is that which is considered to be decided by it in Coope v. Eyre, 1 H. Bl. 45; see particularly the judgment of Mr. J. Heath in the last case. || So, where a joint agent is employed to make a sale, and to that extent the parties (under the circumstances of the case,) might be deemed partners, it does not follow that such partnership is to be implied in reference to the disposition made by the agent of the proceeds of the sale, and property purchased by him with such proceeds. This appears from the following case. Archer & MeConchey, partners, owning three-fourths of a vessel, and Kimberly & Brace, partners, owning the one-fourth, agreed to fit her out on a voyage from New York to Laguira. Archer & McConchey supplied three-fourths of

the cargo; and Kimberly & Brace the other fourth, but which was not distinguished from the rest of the cargo by any particular marks; and the whole cargo was to be sold at Laguira for the joint account and benefit of the owners. McConchey one of the firm of Archer & McConchey, went out as supercargo and agent for the concerned; and having sold the cargo at Laguira, invested the proceeds in a return cargo, with which the vessel set sail for New York, but was obliged by stress of weather to put into Norfolk, where the supercargo sold the return cargo, except a small parcel of coffee, and for the avails received bills of exchange which he endorsed and remitted with the parcel of coffee to Post & Russell, to whom the firm of Archer & McConchey, and McConchey individually, were indebted. Post & Russell had notice of the interest of Kimberly & Brace in the shipment. The latter filed a bill for an account, against Post & Russell, who it appears had received the entire proceeds of the sale, and a decree was rendered in their favor for one-fourth of the net proceeds of the return cargo. Post & Russell having appealed, the decree was affirmed by the Court of Errors; and it was held that there was no agreement constituting a partnership in the purchase of the outward cargo, or to share jointly in the ultimate profit and loss of the adventure; though there might be a partnership so far as respected the transportation and selling of the outward cargo; yet it terminated with the sale of the outward cargo, and their interest in the return cargo was separate and distinct, each being entitled to his respective proportion of it, without any concern in the profit or loss which might ultimately arise. Kent, C. J. in delivering his opinion for the affirmance of the decree says: "Because the sale was to be joint at Laguira, (and that is the only thing that looks like a partnership in the whole case,) it does not follow that the subsequent sale was to be joint. As the separate shares in the outfit were held by them as tenants in common, the sale of that cargo was necessarily joint; and so it is if several persons send their wheat together in one sloop to market, with directions to the captain to sell it for the benefit of each: but their respective proportions of interest in the proceeds, have never been considered as liable for each other's debts." Post v. Kimberly, 9 Johns. Rep. 470, 503; and see Holmes v. United States Ins. Co., 2 Johns. Cas. 329. That a joint ownership or interest in property does not necessarily constitute a partnership, see further, Lawrence v. Dale, 3 Johns. Ch. Rep. 23; Livingston v. Lynch, 4 Johns. Ch. Rep. 573; Mumford v. Nicholl, 20 Johns. Rep. 611; Porter v. McClure, 15 Wend. 187; Rice v. Austin, 17 Mass. Rep. 206.||

SECTION 8.

Principal how discharged.

1. Where credit has been properly given to an agent on a purchase for the use of the principal, the vendor has in general a right to come upon the latter for payment, without regard to any transaction or account between the principal and the agent. Therefore, no private agreement, by which it is stipulated between the principal and agent that the latter only is to be answerable to the seller, can affect the right of the latter.(A) A covenant by the master of a ship with the owners, that he should be at the cost of the repairs, does not discharge them from their liability for repairs done by his orders.(a) Nor is it any defence to an action against a master for articles sold for his use to a servant, that by agreement with the master the servant for a certain sum contracted to furnish those articles.(b) So that a vendee by paying his own broker does not discharge himself from the demand of the vendor, unless the latter, by giving credit to the broker, induces [induce] the principal to believe that he is released. In an action for goods sold and delivered, the facts were, that the plaintiffs sold

the goods to K. & Co., to be taken away in one [244] month, and paid for in a month *from the sale. K. & Co. were really brokers for the defendant; but that was not known to the plaintiffs till some time after the sale. K. & Co. became insolvent before the expiration of the month, the defendant having previously paid them the price of the goods. It was contended for the defendant, that though in general, upon a sale to a broker, the vendor may come upon the principal when discovered, the doctrine must be taken with this qualification, that the princi

(^) || Ante, 201; Clark v. The Mayor &c. of Washington, 12 Wheat. 40.]] (a) Rich v. Coe, Cowp. 636.

(b) Precious v. Able, 1 Esp. Cas. 350.

pal has not previously paid the price of the goods to the broker. But Lord Ellenborough said, "A person selling goods is not confined to the credit of a broker who buys. them, but may resort to the principal on whose account they are bought; and he is not affected by the state of accounts between the two. If he let the day of payment go by, he may lead the principal into the supposition that he relies solely on the broker; and if in that case the price of the goods have been paid to the broker on account of this deception the principal shall be discharged. But here payment was demanded on the day it became due, and no reason was given the defendant to believe that his broker alone was trusted:" and accordingly a verdict was directed for the plaintiff.(c)

*For the same reasons a principal cannot, under [*245] these circumstances, protect himself by setting up a balance due to him from his own broker.(d)

What is here said does not affect the case of servants to whom money is paid in advance to purchase goods with, and who, notwithstanding, are allowed by the sellers to deal upon credit; in such cases, the credit itself being unauthorized by the masters, they are not liable.(e) But it was observed, that if the master justify the credit given to the servant at all, he is not then discharged by paying the price to the servant, if the latter omit to pay it over to the creditor:(f) and the authorities already referred to upon that part of the subject may serve to illustrate the present.

(c) Kymer v. Suercropp, 1 Campb. 109. Speering v. Degrave, 2 Vern. 643. A. as master of a ship of which the defendants were owners, bought several goods of the plaintiffs. A. failed, and on a bill to compel the defendants to pay, they insisted that A. only was liable, because he had money from the part-owners to pay the plaintiffs; but the court held that A. was but a servant to the owners, and where a servant buys, the master is liable; and though the owners paid their servant, yet if he pay not the creditors, they must staud liable.

(d) Waring v. Favenc, 1 Campb. 85.

(e) Ante, p. 162.

(ƒ) Ante, p. 162, &c.

2. It was before hinted, that in all these cases, where the principal, notwithstanding his having paid his own agent, would remain liable, yet the vendor may, by his conduct in giving credit to the agent, discharge the principal of that liability. Thus, although the owners of a ship be liable

for the master's contracts, notwithstanding any pri[*246] vate agreement between them by which "the mas

ter stipulates that he alone shall be liable, yet if it appear that a tradesman has notice of such an agreement, and in consequence of it gives credit to the master individually, as a responsible person, particular circumstances of that sort may afford a ground to say that he meant to absolve the owners, and to look singly to the personal security of the master.(g)

Thus also, if a vendor neglect to call upon the principal till long after the credit expires, the principal may have a right to suppose, either that the money is paid over by the agent, or that the creditor takes him for his debtor.(h)

Indeed there are several ways in which the liability of the principal may be affected in purchases made by his agent, of which the following summary may be useful.(a)

1st. The purchase may be made by the broker(B) expressly for and in the name of his principal. In that case if the principal be debited by the seller, he only, and not the broker, will be liable.(1)

(g) Per Lord Mansfield, Rich v. Coe, Cowp. 637; || James v. Bixby, 11 Mass. Rep. 36, 37.||

(h) Per Lord Ellenborough, ante, p. 244, 245; see Kendall v Andrews, 1 Esp. N. P. 115; Stubbing v. Heintz, Peake, N. P. 46; ante, ||165.|| (A) Speaking of the six following positions, Mr. Justice Story says, "these distinctions are laid down with great clearness and accuracy:" and he has inserted them in full in a note. Story's Ag. § 291.||

(B) It can hardly be necessary to suggest to the reader, that although the term broker is alone employed by Mr. Lloyd in the passages, which he has, in this place introduced into the text of the original work, the principles stated are not restricted in their application, to that particular class of factors or agents.||

(1) + Kymer v. Suercropp, Waring v. Favenc, ante, || 244, 245,|| and the proposition is assumed in all the later cases. It would have seemed un

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