
    Daniel F. Herlehy, Respondent, v. Thomas D. Ferguson, Appellant.
    
      Partnership — agreement by one pa/rtrwr that the firm will take groceries in trade for furniture purchased—binding where a custom of the firm to do so is shown.
    
    "Where it is the custom of a firm of furniture dealers to trade out firm accounts, an agreement made by one of the partners with a grocer, as an inducement to the latter to purchase furniture from the firm, that the firm would take groceries in trade for all furniture which the gro.cer might purchase, is binding upon his copartner.
    Appeal by the defendant, Thomas D. Ferguson, from a judgment of the County Court of Herkimer county in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 4th day of May, 1899, affirming a judgment rendered by a justice o'! the peace.
    
      C. J. Palmer, for the appellant.
    
      Myron G. Bronner, for the respondent.
   Laughlin, J.:

The plaintiff and one Tozer were partners in the furniture and undertaking business at Little Falls, and the defendant was a retail grocer in the same place. On the 5th day of May, 1893, the defendant’s wife negotiated with the firm for the purchase of a combination bookcase for thirty-two dollars and fifty cents. The next day said Tozer called upon the defendant and asked if his wife had yet decided to take the bookcase, and urged him to purchase' more furniture, and as an inducement thereto' agreed that the firm would take groceries in trade for all furniture the defendant might purchase of them, and that the defendant need not pay cash therefor. Pursuant to this agreement the defendant purchased the bookcase, and thereafter and prior to the 4th day of December, 1894, purchased of said firm other furniture of the value of fifty-six dollars and twenty-two cents.

Between the 12th day of June and the 12th day of December, 1893, the defendant delivered, at tlm residence of Tozer, on the latter’s order, groceries of ,the value of sixty-eight dollars and twenty-eight cents, and charged the same to the firm. On September 21, 1897, said firm dissolved, and Tozer assigned all his interest in. the -business to tlie plaintiff. The plaintiff presented a bill to the defendant the latter part of January, 1898, and demanded payment in cash for all the furniture so purchased. Tlie defendant then informed plaintiff of the agreement and of such delivery of goods on the order of Tozer, and offered to deliver to the plaintiff groceries for the balance of the account. /The plaintiff denied knowledge of the agreement tó take goods in trade for the furniture or authority on the part of Tozer to make the same, and declined the deféndant’s said offer. The plaintiff presented to the justice a verified complaint demanding a money judgment for the entire furniture, account, and the defendant interposed a verified answer, setting up the agreement as claimed by him, aud alleging payment in groceries to the extent of sixty-eight dollars and twenty-eight cents, and his willingness to pay the balance of the account in like manner. . ■

The undisputed evidence shows that the furniture was purchased upon the agreement of Tozer that the account would be traded out in. groceries by the firm. Tozer testified that he communicated the substance of the agreement tó the plaintiff, but this the plaintiff denied. The plaintiff testified that he never authorized Tozer to make such an agreement with the defendant or with any one else. Tozer further testified that it was the custom of the copartnership to trade out firm accounts. The plaintiff was asked on cross-examination if such was not the custom, and, on the objection of his counsel, the evidence was excluded. Thus it appears that the testimony of Tozbr, which was the only testimony' on this subject,, stands undisputed.

The defendant would not be entitled to credit on the firm account for the groceries so delivered to Tozer without showing affirmatively that Tozer was authorized by the course of business of the-firm, or otherwise, to receive the groceries that were delivered to him. by the defendant, or that ■ his act in so doing had been ratified. It is not apparently or really within the scope of the business of á copartnership for one partner to obtain individual credit in settlement of an indebtedness owing to his firm, and those dealing with him are bound to take notice that such- a transaction is outside of the partnership business. (Union Nat. Bank v. Underhill, 102 N. Y. 336; Evernghim v. Ensworth, 7 Wend. 326; 5 Wait’s Act. & Def. 131.)

Whether Tozer, by virtue of his general agency as a member of the firm, was authorized to sell its furniture on an agreement that groceries would be accepted in payment by the firm, need not now be determined, since, as we have seen, this was the custom of the firm, and, consequently, the agreement to that effect made by one member of the firm was binding upon the copartnership. (Graser v. Stellwagen, 25 N. Y. 315; Union Nat. Bank v. Underhill, 102 id. 336, 340; 17 Am. & Eng. Ency. of Law, 1014, 1015 ; Nat. Bank v. Dickinson, 18 So. Rep. [Ala.] 144.)

There was no evidence of demand by the plaintiff upon the defendant, or of refusal on the part of the latter to deliver groceries according to the agreement under which the furniture was sold. It necessarily follows that the plaintiff was .not entitled to recover a money judgment.

• The judgment of the County Court and /that of the justice of the peace should be reversed, with costs to the appellant.

All concurred. .

Judgment of the County Court and of the justice of the peace reversed, with costs. .'  