
    Martin et al. v. Bray.
    In an action of covenant against copartners, the plaintiff offered in evidence an agreement sealed and executed in the firm name by one partner, to be followed by evidence showing previous authority or subsequent ratification by the other partners. The agreement was admitted, under objection and exception. Parol evidence was then given, without objection, that the other partners assented to the terms of the agreement before its execution and that the firm made shipments under the agreement and payments on account. Held, that it was not an error to admit the agreement, under the offer of evidence.
    
    
      Per Cüriam. — The defendant should have objected to the admission of the oral evidence or have called upon the court for some ruling in regard to it.
    
      Not decided, whether the decision in Hart v. Withers, 1 P. & W. 285, that. oral ratification is not sufficient, has been modified by the more recent, decisions.
    Jan. 25, 1889.
    Error, No. 428, Jan. T. 1888, to C. P. No. 3, Phila. Co., to review a judgment on a verdict for the plaintiff in an action of covenant, at June T. 1883, No. 362.
    The action was upon an alleged agreement for royalties for the use of a patented invention. It is stated in. the paper book of defendant in error that a copy of the agreement was filed in the case, but it does not appear by the abstract of proceedings. The pleas were non est factum, covenants performed, and covenants performed absque hoc.
    It appeared, from the bill of exceptions, that, at the trial before Einletter, P. J., the plaintiff offered in evidence the agreement, purporting to be between Wilson Bray the plaintiff, of the first part, and the defendants, Joseph J. Martin, William M. Puller, Alfred M„ Fuller and Thomas B. Shriver, copartners, trading as Martin, Fuller & Co., of the other part. To this agreement were affixed the signatures “Wilson Bray” and “Martin, Fuller & Co.,” opposite scroll seals. It was admitted that the signature “Martin, Fuller & Co.” was made by Joseph J. Martin. Objection was made to the admission of this agreement as evidence in this action of covenant, because one partner has no right to bind the film under seal unless specially authorized so to do. Counsel for the plaintiff thereupon stated that their offer was to follow the agi’eement with proof of the assent of the other partners, previous to its execution, or their subsequent ratification. The court thereupon admitted the agreement, to be followed by proof as above, overruled the objection, and allowed an exception. The plaintiff then introduced evidence, without objection, to show that all the defendants were present at a zneeting, prior to the execution of the agreement, and assented to its terzns, which were fixed at that time, and that they were all actively employed in shipments made pursuant to the agreement, and that payments were-made to the plaintiff an account.
    Verdict for plaintiff for $7,763.09, and judgment thereon.
    
      The assignments of error specified the action of the court in-admitting in evidence the alleged agreement declared on, 1,: “ because it was executed under seal by only one of the defendants, and no evidence was given to show that he had the power to bind the other defendants by deed;” and, 2, “because it was not signed in the presence of the other defendants, or any of them, and there was no evidence that the one signing was authorized to bind the defendants by a contract under seal.”
    
      Theodore F. Jenkins, for plaintiffs in error.
    One partner cannot bind his copartner by deed, although it be given in a transaction in the course of the business of the firm, and the benefit be received by the firm. Hart v. Withers, 1 P. & W. 285; Gay v. Waltman, 89 Pa. 453, 456; Hoskinson v. Eliot, 62 Pa. 393.
    
      The plaintiff cannot, in this suit, recover against Joseph J. Martin, because the declaration is upon an alleged joint covenant.
    The fact that all of the defendants, as partners, were subsequently engaged in shipments, pursuant to the agreement, did not make the agreement their deed, and the authority of any agent to bind by deed can in no case be by parol. Hart v. Withers, 1 P. & W. 285.
    There is no exception to the general principle, in the case of executory contracts, where the action is brought upon the deed or contract itself, on a right having no legal existence but by the operation of the deed. Notes to Livingston v. Roosevelt, 1 Am. L. C. *451.
    
      Thomas H. Speakman, with him J. W. Goheen, for defendant in error.
    In order to bind the other partners, it is only necessary to show prior assent or subsequent ratification, and this need not be express or special, but may be implied from the course of dealing of the firm. Note to Livingston v. Roosevelt, 1 Am. L. C. *450, citing, inter alia, the leading cases of Gram v. Seton, 1 Hall, 262, and Cady v. Shepherd, 11 Pick. 400. To the same effect is 1 Lindley on Partnership, ed. 1888, *137, Ewell’s notes.
    The fact of previous authority or subsequent ratification is of necessity open to proof the same as any other fact, and may be shown by parol evidence. Fichthorn v. Boyer, 5 W. 159; Bond v. Aitkin, 6 W. & S. 165; Heilner v. Battin, 27 Pa. 517; Johns v. Battin, 30 Pa. 84; Schmertz v. Shreeve, 62 Pa. 457.
    The sufficiency of the evidence was a matter entirely for the jury, and will not be considered by this court. Benson v. Maxwell, 45 Leg. Int.339.
    The evidence does, however, show' fully not only precedent authorization but subsequent ratification, and that all four partners had, from first to last, full knowledge of the agreement, availed themselves of it and became parties to it as much as though each one had separately signed.
    Under Rule I., § 1, of the Rules of the Court of Common Pleas of Phila. Co., the execution of an instrument of writing for the payment of money is to be taken as admitted at the trial, where a copy is filed and served with the narr., as was done in this case, unless denied by affidavit. This rule accomplishes in all cases what could otherwise be accomplished by an agreement of counsel, as in Heilner v. Battin, 27 Pa. 517.
    The case of Hart v. Withers, 1 P. & W. 285, relied upon by the plaintiff in error, is at variance with all the subsequent authorities, and is said to have been overruled by Bond v. Aitkin, 6 W. & S. 165. See 1 Am. L. C. *450, note 3.
    The decisions in Gay v. Waltman, 89 Pa. 453, and Hoskinson v. Eliot, 62 Pa. 393, were upon circumstances so entirely different that.those cases have no application.
    Jan 28, 1889.
   Per Curiam,

The two assignments of error raise but one question. The paper admitted in evidence was a sealed instrument and was. signed by one only of tbe firm of Martin, Fuller & Co., and in the firm name. When the offer of the paper was objected to, it was stated by counsel for plaintiff below that they proposed to follow it up with proof of the prior assent or subsequent ratification of the other partners. The offer as it was made was unobjectionable. The prior assent or subsequent ratification might have been shown by writing under seal. It is true, the proof introduced was of oral ratification. This testimony, however, was not objected to.' If the defendant relied upon the doctrine of Hart v. Withers, 1 P. & W. 285, he should have objected to the admission of the evidence, or have called upon the court for some ruling in regard to it. He did neither, and we cannot say, under the circumstances, that the court below erred in admitting the paper. This view of the case renders it unnecessary to consider how far Hart v. Withers, has been modified by the more recent decisions.

Judgment affirmed. H. J. L.  