
    
      SMITH vs. KEMPER, vol. III, 639.
    
      Livingston for the defendant.
    A rehearing has been granted to us, and we are to confine our argument to two questions.
    1. Whether a person, after having created an interest for another, can destroy that interest, before the other has signified his refusal to accept it?
    An absent person, in whose favour a stipulation is made, may avail himself of it.
    A partner entering into a contract, in the name of the firm, cannot be admitted to say that he was not authorised to make it.
    
      East’n. District.
    June 1816.
    
      2. How far a partner may bind his firm in contracts which, though not contemplated by the articles of copartnership, are entered into for the utility of the firm and for the better management of its business?
    I. On the first question, in the terms in which it is stated, we may be permitted to remark, that the case can with difficulty be supposed to exist under any circumstances, and certainly cannot under those, in which this case is presented to the court.
    In order to acquire a right in the property of another (except in the case of succession, forfeitures and cases in which the law alone operates) there must be a contract.
    But a contract is the consent of two or more persons to form between them some engagement. 1 Poth. Obl. n. 3. The case supposed, in the first question, can at most only amount to a pollicitation, which is defined to be a promise which has not been accepted by him to whom it has been made, Pollicitatio est solius offerentis promissum: and according to Pothier, it “produces no obligation” and “ he, who has made this promise, can retract, as long as it has not been accepted by him to whom it has been made.” Pothier on Obl. n. 4. This doctrine is only copied by Pothier from the Roman law, and is to be found in the Dig. lib. 50. passim.
    
    The fifth law contains a case somewhat similar to the one under discussion. Ex epistola quam muneris edendi gratia absens quis emisit, compelli eum ad editionem non posse. And the Spanish law on this subject is declared by Rodriguez to be conformable to the Roman. The only cases, in which the pollicitation is declared to be binding, are when they are made to the community, and then only when they are in consideration of some dignity promised or conferred (in which case it would seem that it was no longer a pollicitation but a contract) and when they have caused some inconvenience or expence to the community by beginning to execute it.
    The same principle is adopted in the English law, vid. 2 Bl. Comm. 30. And practising on this doctrine, their courts have determined that a bidder at an auction may retract his bid at any time before the article is struck off. 1 Espinasse N. P. 113, 47. 3 Term R. 148.
    If we admit (and according to the authorities quoted I do not see how we can deny) that there is no contract before the offer or proposition is accepted, it seems to follow most conclusively that the party has a right to retract his offer, at any time before acceptance. If he has not, it must be because the party, to whom the offer is made, has acquired some right by this offer, but it has been shewn that such right can only be acquired by a contract, and that there is no contract without the assent of both parties, either express or implied, but the case supposes the assent of one party to be wanting, therefore there is no contract; therefore there is no vested interest; therefore the party had a right to retract.
    The doubt expressed by the court seems to arise from conceiving that an interest can be created by contract, without an assent either expressed or implied of both parties, which it is respectfully supposed is a case that can never exist ; however strongly expressed may be the offer, by whatever solemnities it may be clothed, it is but an offer, it is but a pollicitation, but a naked promise, which becomes binding only by the acceptance. The analogy is in nature. The female blossom of some plants is beautiful and has, to a cursory observer, every appearance of perfection ; but alone it produces no fruit, the concurrence of the male stamen is necessary to give it force, vigour and stability.
    The contract made between Duplantier and Kemper, if valid at all, was valid as a sale, it purports to convey a tract of land for a consideration in money. If Smith acquired any interest by virtue of this transaction, it must be as vendee. Now let us examine whether any of the requisites, to a sale can be discovered, as applicable to him. There must be a thing sold; a price agreed and the consent of the contracting parties. It would require no very subtle reasoning to shew that neither the thing, nor the price can be said to exist, in relation to a party who is ignorant of both. But dropping those, we will take only the third requisite, the assent of the contracting parties, which Pothier says is "the very essence of the contract of sale, and consists in a concurrence of the will of the vendor to sell a certain thing, to the vendee at a certain price, and of that of the vendee to purchase the same thing at the same price.” It will hardly be answered to this authority and to the inevitable deduction that must be drawn from it, that it only applies to the contracting parties, and that here Smith did not contract. I say this answer will hardly be given; because if Smith was not intended to be one of the parties to the contract, he can surely claim no interest under it: if he was intended to be one of the contracting parties, then his assent must be shewn, or the contract is void, and the other parties have a right to retract their offer as well in a contract of sale, as we have seen they have generally in other contracts. Pothier tells us that a sale may be made between persons who are absent, as well as those who are present, and that it may be made in the former case by letters or messengers. Let us consult this excellent civilian and see whether he does not throw some light on the case before us. “That the consent (he says) may be supposed to take place in this case, (a sale by letter) it is necessary that the will of the party, who has written to propose the sale, should be persevered in until his letter shall have reached the other, and that this other should have declared that he accepted the bargain.
    
    This will shall be presumed to have been persevered in, as long as the contrary does not appear. But if I have written to a merchant in Leghorn to propose to him the purchase of merchandise at a certain price, and before my letter could reach him I write a second declining the bargain; or before that time I should die or lose my reason, in this case, although the Leghorn merchant, ignorant of my change of mind, of my death or insanity, should have answered that he accepted the bargain, yet no contract of sale shall be deemed to have taken place between us; because my will not having been persevered in until the time that the merchant received my first letter and accepted my proposition, the mutual consent or concurrence of two wills necessary to the contract of sale was wanting.”
    Apply Pothier’s supposed case to the one actually before the court. Duplantier and Kemper, we will suppose, both intended at the time of the private act, that Smith should have half of the land at the stipulated price, but, before Smith completed that act by his acceptance, they both change their minds and make a notarial sale conveying it to Kemper solely. Certainly if Pothier’s reasoning (in which he is supported by the authorities he quotes) be correct, it puts an end to the question. The private act of sale given to Kemper was as much a nullity, as respected Smith, until his assent should intervene, as was the letter to the Leghorn merchant, until he answered it, and both had an equal right to retract until their assent were given. If we are not mistaken, this court have made a decision on this principle; even in the case of a notarial act, in the case of Brognier Declouet vs. Blanque et al. 3 Martin, 326. Several of the defendants had sighed a notarial act, and before the acceptance of the plaintiff, or on his conditional acceptance, they erased their signatures, and were held not to be bound, tho' the plaintiff afterwards agreed to accept, and actually signed unconditionally: this certainly could not have taken place, if an interest had vested in Declouet before his acceptance, by the signature of the defendants.
    Again, if Smith had an interest before acceptance, he could not have had it gratuitously, he must have been under some corresponding obligation to pay the price, but it is absurd in terms to say, that he could contract an obligation without his assent to pay the price, therefore he could have no interest until he had by his assent contracted the obligation, and having no interest, Kemper and Duplantier, who were the only persons who had such interest, might dispose of it as they thought fit. If need hardly be remarked that the doctrine of implied assent cannot be at all applicable in this contract, which was an onerous one and made the purchasers liable to an action for the price.
    I have in the beginning of the argument, stated successions and forfeitures, as exceptions to the rule, that no property can be acquired without assent, but the truth is they only exist as such by the common law. Ours is much more conformable to the dictates of reason, and does not, even in the case of the succession, give the property of the deceased to his heirs, until they have expressed their consent to accept it. Confining myself to the simple question stated by the court, that alone has been the subject of discussion, and the case has been considered as if Smith had neither assented to, nor refused the bargain: but the evidence of his refusal is so extremely prominent, that I must suppose that the court directed the investigation in this form, more to throw light on the general principle, than to consider it as a question on which the determination of the court would depend: on this head I refer, first, to Smith’s letter, 18th August, 1799, secondly, to
    
      Duplantier’s, Baker’s William’s depositions.
    II. We are to shew that no supposed motive of utility can enable one partner to bind the other beyond the casus federis, contained in the articles of copartnership.
    Smith, in forming his partnership with Kemper, restricted it to the purchase of merchandise and the sale for cash or convertible articles; he never intended that, by this contract of copartnership his partner should be authorised, even where he thought it advantageous, to the concern, to deal in lands. Certainly the purchase of land is as much excluded from the terms of this contract, as the sale of them would be; if the one is to be effected for the benefit of the trade, the other is equally so: yet it will scarcely be supposed that if Kemper saw the means of making a great commercial speculation, he would have a right to sell Smith’s landed property, in order to raise money to effect it. The object, therefore, to be attained by the act can never bring it within the contract, if it were not within the contemplation of the parties, at the time they formed the contract.
    Whatever is clearly expressed in an instrument is said to be according to its letter. Whatever is not so clearly expressed, but which may fairly be presumed from the tenor of the whole to have been the intent of the parties, is said to be within its spirit. Whatever is not contained within the letter or the spirit of a contract, does not come within, and cannot be justified under, it.
    In a copartnership for buying and selling merchandise, the right to purchase and sell the common stock is, according to the letter of the contract, and the right to hire a shop for the purpose of exposing the goods to sale, though not expressed, is within its spirit. Is it the same thing with respect to the purchase of a store? I think not: because it cannot fairly be presumed to have been the intent of the parties, or to have been in their contemplation, at the time of making the contract: as real estate has been deemed more important than personal, most, perhaps all, codes of laws have prescribed greater solemnities for its conveyance; and in an instrument relating both torreal and personal estate, the former would always be considered as the principal, the latter as the subordinate object; it is fair, therefore, to conclude, that if the parties had, in establishing a commercial house, contemplated a purchase of real estate, for the more convenient transaction of their business, that this important point would have been expressed. The numerous and obvious inconveniencies of suffering one partner to bind the other by contracts as to real estates, need not be dwelt upon, when we have this conclusive argument to use, that no contract for the purchase of land is valid unless made in writing by the party, or his attorney lawfully appointed. Now, as Smith did not make the contract himself, a power of attorney must be shewn in writing from him to Kemper, or Kemper’s act cannot bind him, and of course can give him no interest. It must therefore, I think, be concluded that the power to purchase, even a store for the sale of the merchandise, is neither within the letter nor the spirit of the articles, and therefore cannot be justified by any motive of supposed utility.
    But, when we reflect that the purchase in question was a large tract of land, more than a thousand times greater in extent than was necessary for the purpose of building a store, that it was made evidently for the purpose of speculation, and a speculation totally foreign to the object of their partnership; and that Smith himself has declared on record in his petition to the Spanish commandant that Kemper “had no authority to purchase,” there seems to be little doubt, reasoning on general principles, that, in this case, the purchase must be solely for Kemper’s account; the doctrine, thus laid down in this argument, appears to be supported by the following authorities:
    Dig. 17, 2, 82, Godfrey’s note (no. 32.) Extra societatem gesta, socios vel consortes non obligant sed ipsos tantum contrahentes.
    
    7 Durnford & East, 207.
    1 Dallas 122, president Shippen sets aside a bond and confession of judgment executed by one partner for both, in the following terms: "There can be no doubt that in the course of trade, the act of one partner is the act of both. There is a virtual authority to that purpose, mutually given by entering into partnership; and in every thing that relates to their usual dealings, each must be considered as the attorney of the other. But this principle cannot be extended further, to embrace objects out of the course of trade. It does not authorise one to execute a deed for the other: this does not result from their connection as partners; and there is not a single instance in the books which can countenance such an implication.”
    So in a similar case in New-York, 2 Caines 255, Judge Livingston says, “It is settled in England that one partner, in consequence of the general authorities derived from the articles of copartnership, cannot execute deeds for the other. Were it otherwise, they would be enabled to dispose of the real property of each other, and to create liens on it without end; this would render such connections more dangerous than they already are, if not discourage them altogether.”
    In 1 Day’s Rep. this doctrine was extended to a policy of insurance by one partner in the name of both. A case certainly more analagous to mercantile transactions than the purchase of land.
    
      Moreau for the plaintiff.
    The defendant’s counsel contends that in order to acquire a right in the property of another (except in the case of succession or forfeiture, and cases in which the law alone operates) there must be a contract, which cannot be formed without the assent of all the parties, otherwise there is no contract, but a promise or a pollicitation, which produces no effect: and therefore till the plaintiff gave his assent to the purchase made in his name by the defendant, the sale was revocable, at the will of the latter or of the vendor.
    The proposition is not perfectly correct. Property may be acquired not only by succession or contract, but also by the obligations resulting from the acts of a man, without any contract, as quasi contracts, torts and quasi torts, accession, occupation, prescription, judgment, &c. Code Civil 145.
    It is true that a contract, or to speak more correctly, a convention, according to Pothier’s definition is the consent, of two or more persons to create an argument. Pothier on Obl. n. 4. Consequently in sygnallamatic contracts, the consent of all the parties is required for the perfection of the contract. But it is otherwise in quasi contracts, especially in that of negotiorum gestorum, which are formed by the sole act of the negotiorum gestor, without the assent, or even the knowledge, of him whose affairs are managed, Civil Code 319, art. 5. We are then closely to examine the various engagements resuiting from tHe act of sale, entered into by Duplantier and the defendant, in the name of the partnership of Kemper & Co. We find in this act a contract, and a quasi contract. A contract of sale between Duplantier and Kemper & Co. and a quasi contract between the plaintiff and the defendant, considering the act as not binding on the firm.
    This act contains a contract of sale between Duplantier and Kemper & Co. For the defendant purchases a tract of land in the name of the firm, for a price agreed upon. The act is evidence of the reciprocal assent of the parties, which is required in all sygnallamatic obligations. Duplantier agrees to sell to Kemper & Co. and the defendant under the signature of the partnership, agrees to pay the price agreed upon. The contract is then perfect between Duplantier and the defendant, and it was no longer in the power of Duplantier to destroy its effect, without a formal retrocession of the defendant, contracting in the same capacity; this did not take place. This act cannot then be considered as a mere pollicitation, a promise not yet accepted by the promisee, who is at liberty to reject it. There has been a sale by the ven dor, accepted by the vendee. But the acceptance is said to be without effect, because the defendant could not bind the plaintiff, his partner, by a contract for the acquisition of land, under their articles of partnership. The insufficiency of the defendant’s powers, may be opposed by the plaintiff, and not by the defendant. It often happens that an attorney exceeds his powers in purchasing, in the name of his constituent, a thing which he was not authorised to purchase; but it does not follow from hence that there is no sale, no reciprocal consent: if the constituent does not ratify the purchase, it will remain for the account of the attorney—but till the constituent manifest his intention, the right to accept the purchase is in him and cannot be affected, even by the concurrence of the wills of those who made the contract.
    The act of sale between Duplantier and the defendant, supposing the latter not to have had sufficient powers to bind the partnership, contains a quasi contract of negotiorum gestorum between the plaintiff and the defendant, which precluded the latter from destroying, in his private name, the engagement which he had taken in the plaintiff’s name, till he formally refused to ratify it.
    When any attorney, says Pothier, has exceeded his powers, his conduct, in regard to what is beyond those powers, forms between us a quasi contract of negotiorum gestorum. 2 Contrats de bienfaisance, n. 177.
    Can the attorney, who has contracted, in the name of his constituent, for some thing beyond his powers, rescind by his own act the contract, before the constituent had time to ratify it? We think not.
    Pothier informs us that this question was strongly debated in France, in regard to stipulations in a contract, in favour of third persons, not parties thereto, and remained undecided till the ordinance of substitutions.
    According to the strict principles of law, adopted in France, one could not stipulate or enter into an engagement, in one’s own name, but for one’s self, and consequently when one stipulated a thing with another, for a third person, the convention was void. 1 Pothier, Ob. 54, 55. But what concerned a third party might be the mode or condition of a convention, altho’ it could not be the object of it. So altho’ nothing could be directly stipulated for a third person, the vendor might bind the vendee to do something for a third person, id. 71.
    On this the following question arises: whether, having given you a thing, on condition that you should return it to a third person within a given time, or to give him something else, I might release you from your obligation, the third person not being a party to our bargain? Pothier says, the writers were divided on it, and does not disclose his own opinion. From the adoption of an affirmative answer, there would result no general rule, but a particular one only, confined to the case of a donation or liberality towards the third person, not a party to the contract. When I give you a thing, charging you to deliver another to a third person, two distinct donations occur: the one to you, which derives its perfection from your intervention and acceptance, the other in favour of the third party, which can only become perfect by his acceptance. Till he accept, his right is in suspense, and I may revoke what I have done in his favor, because the donor may revoke the donation while it remains unaccepted. Pothier, Don. inter vivos, sec. 2. p. 54.
    These authorities, however, are not applicable to the present case. The defendant did not stipulate in his own name, but in that of the plaintiff, or of the firm of Kemper & Co. Supposing that his powers, as a partner, were not sufficiently extensive to bind the partnership, for the purchase of a tract of land, he was in the situation of an attorney, having done, in the name of his constituent, an affair which exceeded his powers, or of a person who had taken on himself to purchase a thing for another, without his authority or knowledge. In either case the purchase would not be null, but subject to the ratification of the person for whom it was made. If the negotiorum gestor occasions any loss to him whose affairs he undertook to manage, in purchasing things, which the latter did not usually purchase, the loss will be his own; and we say, that on the contrary, if any profit result therefrom, it shall be for him whose affairs have been managed. Part. 5, 12, 33.
    
    It is clear from this law, that he, whose affairs have been managed without his knowledge, acquires a right on the sale which has been made in his name, if it appears to him beneficial. How can this law be reconciled with the opinion of those who hold that a negotiorum gestor may annul a contract, which he has made, before it be ratified by him, on whose account it has been made. When I have purchased, in the name of a third person, without his authority or knowledge, the law raises between him and me a quasi contract of negotiorum gestorum, which binds me, in the same manner as if I had purchased with his authority. Code Civil 319, art. 5.
    
    
      If it cannot reasonably be pretended, that an attorney, who contracts in the name of his constituent and according to his power, cannot annul the contract without the assent of his constituent; how can the negotiorum gestor, who in this case is assimilated to the attorney, possess a right, which the latter has not?
    In the case of a donation in favour of a third person, the donor may revoke the donation till it be accepted, for till then no right is acquired to the donee; but the case is a very different one. Duplantier did not sell to the defendant, but to Kemper & Co. or to the plaintiff and defendant. The property therefore passed to them, altho’ the transmission of it might depend on the ratification of the plaintiff. Every day purchases are made for third persons subject to their ratification. Till then the purchase is conditional, but the right is no less acquired to the third person, to avail himself of the purchase.
    The attorney who, in a contract, has overleaped the limits of his authority, cannot annul the contract without the consent of his constituent; nor the negotiorum gestor, without that of him, in whose affairs he has interfered. We have already seen that the act of the attorney, who had exceeded his powers, was assimilated to the quasi contract of negotiorum gestorum. 
      The constituent has the same right as he, whose affairs have been administered. He may take or refuse the bargain.
    It is only in cases, says Pothier, in which the attorney confines himself within the limits of his powers, that the constituent may be supposed to contract thro’ the intervention of his attorney, with those with whom the latter contracts, and that he becomes bound to them. If the attorney exceeds his powers, the constituent may disapprove the contracts he has made in his name and leave them for his account. 2 Contrats de bienfaisance.
    
    The constituent has then, in such a case, the right of approving or disapproving the contract. This right results from its being made in his name, although without his authority. Who can then take from him a right which the law gives him? How then can it be said the attorney can? This cannot be answered in the affirmative without the support of a positive text of law—one will be looked for in vain. Pothier says, that the refusal of the constituent does not annul the contract, but that it remains for the account of the attorney.
    The Partida 5, 5, 48, declares formally that when one has purchased a thing, in the name of a third person, the latter may take the bargain for himself, and the purchaser is bound to deliver him the thing and its fruits.
    Gregorio Lopez, in his commentary upon this law, says that the right of the third person is grounded on the quasi contract of negotiorum gestorum. This author is relied upon to shew that until he ratifies the contract, it may be annulled by the person who made it. He says that when a negotiorum gestor purchases as such, the contract ought to be made in these words, “you sell to me such a thing for A. B. whose negotiorum gestor 1 am.” That in such a case the sale is perfect, because that reciprocal consent which the contract of sale requires exists: but that if the sale is in these words, “you sell such a thing to A. B. who is absent, and whose attorney I am,” then as the attorneyship does not exist, there is no consent, but that of the vendor; and the sale can only become perfect by the ratification of the vendee, if the vendor persist in the determination. Hence he concludes that he may till then revoke the sale, the consent of the parties in a sale being necessarily reciprocal, and simultaneous. But, he adds that, if the vendor has dealt as attorney of the absent party, whatever expressions may have been used, the vendor cannot revoke the sale.
    Here it is to be noted that the sale has not been made to Smith, an absent person, but to Kemper and Smith. It is true the defendant acted in the name of the firm: but it is admitted, that he was a partner. The contract was then perfect between the vendor and vendees, Duplantier and Kemper & Co: partners being supposed to have given each to the other reciprocally the power of administering their common affairs. Code Civil, 395, art. 37. A partner has primâ facie, especially with regard to third persons, the right of representing his co-partners. Among themselves they may inquire whether one of them has exceeded his powers, and refuse to ratify contracts which are foreign to their concerns, and who could not appear such to the persons with whom he dealt. The observations of Gregorio Lopez have no relation to the present case. The defendant did not take a bill of sale for the account of the plaintiff, calling himself his negotiorum gestor; neither to the plaintiff, calling himself his attorney. He purchased as a partner, for the account of the firm. If he acted within his powers, the bargain is binding on the firm; if he did not, the contract is not the less valid between the parties. Duplantier ought not to suffer from his confidence in the defendant, having made with him a contract, not evidently foreign to the affairs of the firm. If he exceeded his powers, it only follows that his copartner, the plaintiff, may accept or reject the bargain. In the latter case, it remains in full force for the account of the defendant.
    But it is contended that the purchase, tho’ made by the defendant for Kemper & Co. is for his sole account, ff. 18, 1. 64.
    The law relied on is as follows: I purchase land for myself and Titius. Is the sale valid for the whole, or only for one half, or absolutely void? I answer, it is vain that Titius’ name is mentioned; consequently the land is wholly acquired to the purchaser, who contracted.
    The civil law did not admit any one to stipulate, or undertake any thing, except for himself, 1 Pothier, Obl. n. 53. One could not, therefore, stipulate for a third person, unless he acted in his name, and had power so to do, as attorney, partner or otherwise, and it was necessary to make an express mention of this. 1 Pothier, Obl. n. 54, 84. It is on this incapacity of stipulating for a third person that is grounded the law relied on. This is evident from Rodriguez’s notes on this part of the digest.
    Altho’, when one stipulates a sum of money, as well for himself as for a stranger, the stipulation is valid for what he stipulates for himself, it is said in the above law, that the person of Titius is vainly named, and that the sale is valid for the whole: and the reason of it is that the sale is indivisible, and cannot be valid for part and invalid for the rest 6 Rod. Dig. 387.
    
      L'Esparat says, ‘ If I purchase for myself and a third party, without authority from him, the sale is void as to him, and the whole belongs to me:’ l. 64, above cited. Yet, as is observed by Pothier on this law,—hoc non obtinet in omnibus conventionibus: in stipulationibus, cum stricti juris sint, si quis sibi et extraneo stipulet, stipulatio in par em dumtaxat valet, ut definit Pomponius in lege 110, de verb. ob. 2 Dict. du Dig. 554, n. 68.
    This is also what is supposed in the Napoleon code, art. 1119—1121. Where it is said, that one can only take an engagement or stipulate, in one’s own name—except for one’s self.
    The maxim then that one cannot stipulate for a third person was the basis of the decision in the law cited, according to which, the purchase which I had made for Titius and myself was invalid as to him.
    In the present case, the stipulation was a different one. The defendant did not purchase from Duplantier for the plaintiff and himself; the only case in which the law cited might be applicable to the purchase. As a partner he bought for the firm of Kemper & Co. of which he was a member. He did not then stipulate for himself and a third party, having a distinct interest, and without any authority from him: but for the firm, in an affair, which he believed he had a right to conclude as a partner.
    Farther the rigor of the Roman law, in this respect, admitted in France with a restriction, viz: 'That one cannot generally stipulate in one’s own name for a third person,’ is further relaxed by a formal law of the Partidas. The law 48, already cited, declares, that if one, purchases, in the name of another, the latter may ratify the contract and avail himself of it. With such a formal text, in opposition to it, how can the principles of the Roman law be invoked, even in cases to which they would otherwise be applicable? How could one, able to avail himself of a bargain, absolutely made in his name and without his authority, be repelled if he were interested in the bargain for a part only?
    We see daily the same thing bought by several persons, and when Pothier speaks of the right of him, for whom a contract was made without his authority, to ratify and avail himself of it, he makes no distinction on the different kinds of contracts, nor on the nature or quantity of the interest which he may have therein.
    
      If I contract in the name of one, who has not authorised me, his ratification will cause him to be deemed to have contracted by my intervention: for the ratification is equivalent to a power. 1 Pothier, Obl. n. 75.
    He in whose name a tract of land or part of it has been purchased, has the right of being considered by the vendor, in the same light as if he had purchased by an attorney. How can this right be reconciled with a faculty in the vendor to annul the sale, and in him who made the purchase to destroy the effect of the bargain, without the concurrence, and against the will of the person for whose account it was made?
    But, a ratification is spoken of: Does any exist? Can a sale, with delivery of possession, be destroyed by a second sale, made by the vendor to a third person? The property in the land having once been transferred by Duplantier to Kemper & Co. the effect of this transfer could only be destroyed by a retrocession from Kemper & Co. to Duplantier, who might afterwards sell to the defendant alone, or to any other person. Nothing of the kind has taken place. Duplantier has made a second sale to the defendant, without destroying the first. A second sale may prevail over the first, made by the same vendor, when the first was not attended with a delivery, and the second is. But here the record shews that the arm were put in possession, since in January and December 1800, the defendant paid out of their funds, and as a charge to which they were liable to, the costs of the survey, as well as those of the improvements he made on the land. Besides it would be necessary to examine whether the second sale to Kemper & Co. be not a repetition or confirmation, rather than a revocation of the first. Although the act was under the private signatures of the parties, it was perfect, since real estate may as validly be sold in this manner, as by an authentic instrument, and the clause by which the parties agree to have an authentic deed of sale executed of the land which has been sold by a private deed, adds nothing to the validity of the sale, and has no object but to give it authenticity.
    II. The second question proposed by the court is the only one which appears to demand their attention. For, if we prove beyond any doubt, that the sale by Duplantier to the defendant, in the name of Kemper & Co. was strictly binding on the firm, all other questions will become unimportant. If the defendant had the right of purchasing land for the firm, the sale made by Duplantier to the firm is perfect, having had the assent of the vendor and vendee. It could consequently be avoided only by a retrocession, which did not take place.
    
      It is a clear principle, in regard to all partnerships, and commercial ones are not excepted from it, that a partner binds his copartners, in all affairs which are not foreign to the partnership.
    Partnership is contracted for every thing that may relate thereto. Therefore, if one of the partners contract a debt, private to himself and absolutely foreign to the partnership, it is not to be paid out of the partnership funds. 6 Rod. Dig. 337.
    The signature of the firm does not bind the copartners, when it appears, from the nature of the contract, it does not relate to its affairs, as if I were to put the signature of the firm to the lease of a tract of land, my private property, which I had not put in the common stock. 1 Pothier Obl. 83.
    If from the nature of the contract which I make with a copartner, the object of it appears not to concern the partnership, as improvements to his houses making no part of the partnership property, the signature of the firm apposed to the contract will not render it a partnership contract, while the object of it shews that it is not. Pothier, notes a la suite du contrat de louage.
    
    
      It is then less by any particular clause, in the articles of partnership, than by the nature of the contract, and its connexion with the affairs of the partnership, that we are to judge, (at least in regard to third persons) whether a partner could bind the firm, in his contracts for the partnership. For otherwise the interests of those who deal with a partner, under the signature of the firm, would often be in jeopardy. Partnership articles are generally kept secret: the production of them is seldom required; it would often be impossible: many partnership contracts being merely oral. It is then just that contracts made by a partner be regulated less by conventions known only to the copartners, than by the nature of the affair and its connexion with the interest of the partnership.
    Is it then unusual for partners to purchase a dwelling-house, or ware-house for the use of the firm? Is it necessarily compelled to rent? Would the purchase in such a case be held foreign to the affairs of the partnership, and will it be required for its perfection that every individual of the firm should intervene? Surely not. The signature of the firm, apposed by one of the partners, binds all the partners.—provided the contract be not evidently foreign to the affairs of the partnership.
    
      When Duplantier contracted with the defendant, he clearly saw that the purchase was not foreign to the affairs of Kemper & Co. who were exchanging goods for cotton in the seed, and to whom, consequently, a tract of land was useful for the erection of a gin and ware-houses. It was unimportant for him to know whether the articles of partners in between the plaintiff and defendant, to which he had no access, contained any special clause in this respect. He received the signature of the firm, and it sufficed to him that the contract was not foreign to its affairs, in order to create the expectation that both parties should be bound thereby.
    This being established, can it be contended with any hope of success, that tho’ the plaintiff was bound by the signature of the firm to pay the price agreed upon, and though he actually paid it, the defendant may now claim the premises as his individual property, under the pretence that the partnership articles did not authorise him to purchase them. It would be the first time that a mandatory would plead that he had exceeded his powers.
    It is to be remarked, that the partnership articles declare that, 'It’s affaire shall consist in the sale and exchange of merchandise', but it does not interdict other affairs to the partners.
   Derbigny, J.

delivered the opinion of the court. I. In the discussion of the first question, the counsel for the plaintiff and appellee have appealed to principles of incontrovertible truth and soundness, but the application of which to the present case is by no means obvious, viz. that no offer or proposition, tending to a contract, can be binding on the person proposing, until the proposition be accepted; because there can exist no contract, without the concurrence and simultaneous will of the contracting parties.

To apply this principle to the present case, the counsel for the appellee have been reasoning throughout, as if Duplantier, the seller, on one side, and the appellants on the other were parties to this suit. The case of a merchant, proposing to another by letter to sell him merchandise, at a certain price, and withdrawing his proposition before acceptance, is quoted and relied on, as one which bears a strong resemblance to this. Duplantier must then be the person proposing, and Smith the person to whom the proposition is made. But does that agree with the fact? Is there in this case any feature which warrants the comparison? Surely not. And what are the facts here? Duplantier, the proprietor of the land now in contest between the parties to this suit, made an absolute sale of that land to the partnership of Kemper & Smith. The contract was perfect and complete. Tlie right of Duplantier on the land was conveyed away, never to return, unless by consent of the purchasers, say of Kemper at least, and through a regular reconveyance of the property. Duplantier then could not retract, and his subsequent attempt to sell again a property, which he had already transferred and delivered, is a nullity, unless, as we have heretofore said, it is taken as a confirmation of the first sale.

The question may, therefore, be reduced to this. Can the purchaser, who has bought for himself and an absent person, take the whole bargain for himself, before the absent person has refused to accept?

The strongest authority which can be found in favor of the affirmative, is the Digest, 18, 1, 64. Fundus ille est mihi et Titio emptus. Quæro utrum in partem aut in totum venditio consistat, an nihil actum sit? Respondi, personam Titii supervacuo accipiendam (puto) ideoque totius fundi emptionem ad me pertinere.

By the Roman law, no body could stipulate for a third person, without authorisation. Inst. 3, 20, l. si quis. Therefore, when a stipulation had been made by one for himself and another, if the stipulation was for a thing divisible, as a sum of money, the contract was valid for one half in favor of the party stipulating, and null as to the other moiety. In the case here presented, it is asked what will be the effect of the sale of an immoveable, thus made in favor of two persons, one of whom only stipulates, and it is decided, that the whole estate is acquired to the party stipulating, because, says Rodriguez, in his note upon that law, the sale is indivisible, and cannot be valid for a part only, as is a stipulation for a sum money.

The question settled by this law is not therefore that which arises here; the right of Titius to accept or refuse is not the subject. The validity of the sale is made the question—is it valid in whole or in part, or is it a nullity? Perhaps, this question arose upon a pretension manifested by the vendor to take the property back.

But what will be the use of that law? It is not law in this country; the Spanish code in matters of stipulation in favor of third persons differs altogether from the Roman. By the precise disposition of the Partida 5, 5, 48, any person may buy for another, and the person, in whose favor the purchase is made, may avail himself of it, if he pleases.

Subsequent times have gone farther yet. By the law 3, tit. 8, book 3, del ordinamiento, the recopilacion 5, 16, 2, even pollicitations are made obligatory. Hodie tamen, de jure regio bene quœritur actio illi tertio, et sic corrigitur in hoc jus commune: ita disponit l. 3, tit. 8, lib. ordinament. imo quod magis est nedum precedit, quando quis stipuletur illi tertio absenti, sed etiam quando simpliciter et nudâ pollicitatione quis promittit absenti, ita aperte disponit praedicta lex. Ex qua bene nota quod hodie in nostro regno ex nuda pollicitatione oritur actio et corrigitur totustitulus de pollicitationibus. 2 Gomez, 700. On which article the following comment is to be found in the additions to the same chapter: de jure regio quemlibet alteri stipulari posse, et ex hujus modi, stipulationem directam actionem illi tertio acquiri, ut resolvit Gomez, docent Covarubias, Guthierez, Matienzo, Acevedo, Ceballos et aliicommuniter, no. 3 on the 7th law. tit. 11, part 5. The general opinion of the Spanish jurists predicated upon the law 2, tit. 16, book 5, of the Recopilacion de Castilla, seems therefore to be conformable that of Gomez: some of them going even so far as to say that, if the stipulation in favor of the absent has been made in a public instrument, it gives the right of an executory action, jus exequendi.—Sanchez alone is of the that such a stipulation is of no effect before the acceptance of the absent, but even that opinion does not raise a doubt as to the validity of the stipulation; it only contends that the effect of it is not to take place before the acceptance. But, independently of any comment and of any disquisition, what can be more explicit than the law itself? Obligado uno a otro por promision o contrato, u de otro modo, debe cumplir y no puede exceptionar ni que se hizo entre ausenti, ni que no hubo tal estipulacion, ni que no fue ante escribano publico, ni que la obligacion fue hecha a otra persona privada, en nombre de otros ausentes, puesque, constando que se obligo, la ha de cumplir.

So much for the stipulations made in favor of a third person, unconnected with any right acquired by a contracting party present. But the subject immediately under our consideration, to wit, a stipulation made in favor of two persons, one of whom only is present, at the time of making the contract, is itself particularly mentioned by the same author, in the following article, in a manner that removes all doubts as to the validity of such stipulation in favor of both. Dubium tantum est siquis stipuletur copulative sibi et tertio extraneo decem, an ista stipulatio et promissio valeat, de jure communi et jure regio, et in quo valeat? et breviter dico quod talis stipulatio et promissio intelligitur tantum facta in persona utriusque in solis decem, unde de jure communi valet in persona stipulatoris, pro medietate, et sic quinque; in persona vero tertii extranei erit inutilis; repectu alterius medietatis sibi contingentis in aliis quinque, &c. Hodie tamen de jure regio valeret talis promissio in utriusque persona, per dict. leg. ord. quilibet poterit agere pro medietate, and in the additions to that number, stipulantem copulative, sibi et extraneo, sibi tantum acquirere pro medietate, in alia vero inutilis eam esse stipulationem de jure communi, secus vero de jure regio, ut hic resolvitur comprobari facile potest, ex addictis numero precedenti.

A right is there given by the Spanish law to

the absent person in whose favor a stipulation is made, whether that stipulation be for his only benefit or for the joint interest of him and another person, present at the time of stipulating. In the first case some authors are of opinion that the stipulation is of no effect, until it is accepted, tho' the general doctrine be that such acceptance is not necessary. But, in the other case, that in which the obligor has entered into a contract with one of the obligees, no question is made as to the the contract in favor of both, and the necessity of an acceptance, on the part of the absent person, for the purpose of giving the contract effect against the obligor is not even thought of.

As to the consequence of a refusal on the part of the absent person, with regard to the party who has undertaken to contract in the name of both, it is not a question to be examined in this case, because, for the reasons adduced in our first opinion, we do not think that any refusal has taken place on the part of the appellant.

Hitherto we have considered the appellee as a person entirely unconnected with the appellant, and having undertaken without any authorisation to make a purchase on the account of both. We have seen that, even if such was their relative situation, the contract entered into by the appellee would be valid, and would give to the appellant a right to one moiety of the property bought: but, when we consider that the parties were partners in trade, at the time this contract was entered into, not only the above principles apply to the case with additional force, but others come to their and, which put the claim of the appellant in a still more favorable light.

Partners in trade for the purpose of transacting the business of their concern, are tacitly vested with the necessary power to bind the partnership, in all such contracts as are within the sphere of its commerce. Within these limits each partner is considered as the attorney of the others, and what ever he does is obligatory on them. If he transgresses those boundaries, he places himself in the situation of an attorney, who, exceeds his powers. But, are the acts of the attorney in such cases void ab initio? No: they maybe made valid by the approbation of the constituent. The attorney, says our code, cannot go beyond the limits of his power; whatever he does in exceeding that power is null and void, with regard to the principal unless ratified by the latter. Code civil 424, art. 24. That doctrine, is the same which existed before. Curia Phillipica, lib. 1, cap. 4, n. 20. The appellant then has a right to ratify and accept the purchase of t he land, which is the subject of this action, and the appellee cannot pretend that because he exceeded his powers in making it, the property belongs to him alone.

But, can the appellee be permitted to say that he exceeded his powers? Can he object to the validity of his own acts? Powers of attorney may be given by instruments under private signature, and even by letters. They are the title of the attorney against his constituent to prove, should it be denied, that he acted with due authority, and to make the constituent responsible for what he has done by his order. But the constituent retains no voucher of his authorisation. If it should be permitted to the attorney, after having contracted in the name of his principal, to say, that he was not authorised, he might, should the bargain turn out an advantageous one, apply it to his own benefit. To that effect, it would be sufficient to conceal or destroy the evidence of his authorisation. So between partners (and be it understood, that we have seen nothing in this case that would justify any allusion to the parties). Independently of the powers derived under the articles of partnership, authorisation may be given by one to the other by letter or otherwise: and if the partner, thus authorised, should wish to enjoy alone the benefit of any advantageous transaction, made under such authorisation, nothing would be more easy for him than to secure it. Those reflections are made with the only view to shew how just is the rule which does not admit a party to contradict his own deed, a rule which applies here with particular force: for the act of the party imports the confession of a fact, the proof of which may be in his power alone. We are of opinion that the appellee, after having stipulated in his contract, in the name of the partnership, cannot be admitted to say that he was not authorised to that effect.

For those reasons, in addition to those already expressed in our first opinion, we should think that the judgment rendered in this case ought not to be disturbed: but, as it further appears to us, that, at the commencement of the suit before the Spanish governor of Batonrouge, as mentioned in the proceedings in this case, the premises were in the hands of the appellee, as part of the partnership stock, and the proceedings in the said suit before the Spanish governor, whereby the appellee was dispossessed, appear irregular and illegal: it is ordered, adjudged and decreed, as the judge of the fourth district ought to have decreed, that the appellee be restored to the possession of the said tract of land, as described, and set forth in the proceedings in this case, to be held by him as part of the joint stock of the late partnership between him and the appellant, John Smith, until the final settlement and payment of the accounts of said partnership. And that a mandate do issue from this court to the court of the fourth district for the parish of Pointe Coupee desiring the said court forthwith to issue the proper writ to put the appellee in possession of the said tract of land accordingly. 
      
       Martin, J. did not join in this opinion, naming been of counsel in the cause.
     