
    Henry D. Koch and Maria Koch v. Herman Endriss and Thomas Tucker.
    
      Partnership — Lease—Authority of partner — Ratification— Evidence,
    
    1. Where the execution of a lease, signed by one partner in the firm name, is denied under oath by the other partner, the burden of proof is upon the party claiming under the lease to show the authority of the partner thus to execute it.
    
      2. Testimony showing an unsuccessful attempt by one of two partners to settle and cancel a lease, which he claims was executed by his copartner in the firm name without authority, by the payment of a portion of the rent, is no evidence of ratification.
    3. One .partner cannot bind the firm upon a specialty, except the release of a debt, unless he has express authority for that pur- . pose under seal, or unless he executes the instrument in the presence of and with the assent of his copartner, or unless a prior parol assent or a subsequent parol ratification by such partner is shown; citing Fox v. Norton, 9 Mich. 207.
    Error to Wayne. (Reilly, J.)
    Argued October 12, 1893.
    Decided November 10, 1893.
    
      Assumpsit. Defendant Endriss brings error.
    Reversed.
    The facts are stated in the opinion.
    
      Charles Flowers, for appellant.
    
      James H. Pound, for plaintiff.
   Long, J.

Plaintiffs sued in an action of assumpsit upon a written lease for use and occupation of the premises in tbe lease described from August 1, 1889, to February, 1890. The case was commenced in justice's court, where defendant Endriss, with bis plea, filed an affidavit denying the execution of tbe lease. Defendant Tucker pleaded the general issue. Plaintiffs bad judgment, and tbe case was appealed by defendants to tbe Wayne circuit court, where it was tried before a jury, who returned a verdict in favor of plaintiffs. Defendant Endriss alone brings error.

It appears that tbe defendants, for some years, had be¿n associated as partners in tbe wholesale liquor business. Tbe lease' was executed under seal April 19, 1888, for two years from May 1, 1888: Before tbe lease was executed, and on April 8, defendant Endriss bad left the city of Detroit, and gone to Bermuda. In June be returned. The lease was signed by Tucker in the firm name oí Tucker & Endriss. On the trial the plaintiffs sought to hold both defendants liable, and, before tendering the lease in evidence, offered testimony tending to show that before and at the time of the execution of the lease defendants had been partners in business. Mr. Koch testified that the lease was executed by Tucker in the firm name of Tucker & Endriss; also, that after Mr. Endriss returned from Bermuda he had a talk with him about the rent, and Endriss sought to have some settlement of the rent by paying a portion of it, and have the lease canceled. Some testimony was also given that Mr. Endriss stated that he had lived in the family of Tucker a portion of the time in the house in question. This was denied by Endriss, who also testified that the lease was never signed by him, and that Mr. Tucker had no authority to sign it in the firm name. It appears, also, that the first rent of the premises was paid by Tucker by a check of Tucker & Endriss, but Mr. Endriss never paid any of it personally. The premises were occupied by Tucker as a residence for himself and family, and Endriss claims he never occupied the house but one night, which was upon an occasion when he called on Mr. Tucker upon his return from Bermuda.

When the lease was offered in evidence, it was objected to on the ground that its execution had not been proved. It was admitted in evidence, and at the close of the testimony the court directed the jury:

1. “ If you believe that, prior to Mr. Endriss’ going away, it was understood that the firm’s credit should be pledged for the lease, and in accordance therewith it was so pledged, then both defendants are liable.”
2. “If the jury believe that defendant Endriss ratified the action of Tucker, either by living in the house or by recognizing his liability, then he is liable.”
3. “If you believe from the evidence in the case that the defendants occupied the premises a year and a quarter as plaintiffs’ tenants, this would operate as a ratification of the lease.”

There was no evidence in the case to support this instruction. Mr. Endriss denies that he ever authorized the execution of the lease in the firm name. Mr. Tucker was not .called as a witness, and Mr. Endriss stands uncontradicted.

The only evidence, as before stated, that Endriss ever lived in the house, was given by one witness, who testified "that Endriss told him he lived in the house with Tucker. This was denied. There was no evidence of ratification. The attempted settlement cannot be so construed. Endriss had a right to buy his peace, and evidently attempted to do so, but failed.

It has been seen that there was no evidence to support this charge.

It is a general rule of law that one partner cannot bind his copartner upon a specialty unless he is authorized under seal, or unless he executes the instrument in the presence of and with the assent of his partner, or unless there is prior parol assent or subsequent parol ratification. Fox v. Norton, ,9 Mich. 207. The court was asked to instruct the jury to return a verdict in favor of defendants. This instruction should have been given. Endriss having denied the execution of the lease under oath, the burden of proof was upon the plaintiffs to show authority in Tucker to execute it. This was not done, and the lease was not entitled to be put in evidence.

Judgment must be reversed, and a new trial ordered.

The other Justices concurred.  