
    
      URE & AL. vs. CURRELL.
    
    Appeal from the court of the fourth district
    An agent who thority'does not pa 1 fa It bo o gb the «ith InS hiten-⅛".t0 bene6t
   Mathews, J.,

delivered the opinion of the courb This suit is commenced on an account, by some of the partners of a commercial firm, against their co-partner. Their claim is founded, according to the allegations in the petition, on items erroneously stated, and admitted their prejudice in a final settlement of ! m affairs of the concern, made between them and the defendant, by deed or indenture, executed in the month of October, 1822, During the progress of the cause in the court below, pome of the matters in dispute were submitted to a referee, whose report seems to have been ■/"adopted without opposition, and must be con-side red as conclusive in relation to the subjects referred. The only thing which remains to be investigated' is a claim of $1487. 13⅜ which was, in addition to the sum allowed by the referee, adjudged'by the district court to the plaintiffs; from this judgment the defendant appealed.

The amount now in contestation, appears on a balance sheet, in reference to which the act of settlement ivas made, (as above stated) as a debt due from John Davidson to the firm of Currell. Ure, Donald, & Co. In that settle-merit, which had for its object a final adjust* ill merit and determination of all things relating ,,J|,4o the co-partnership, it appears that the I ^(plaintiffs, in consideration of certain sums of . (money. paid, or to be paid to them by the defendant, took upon themselves the whole concern, in relation to property, credits, and debts. The evidence of the case shows, that Davidson is placed as debtor to the firm, in consequence of payments made by them, for his benefit, as sureties,on custom-house bonds? which payments, it is alleged, were-oaade m? error5 as they were under no obligation either, |egaj or equitable to make them;- but that if the signature to said bonds created any obligation on the part of the sureties, it attached to Currell & Co. a new co-partnership, formed after the dissolution of that above stated.

The facts to be considered, necessary to,a correct decision of the cause, are as follows the dissolution of the partnership of Currell, Ure, Donald, & Co. took place in 1819, and notification of it was given in Great Britain in November, 1820; but in New-Orleans not un till October, 1821. Malcolm Nicholson, a principal witness in the case, was authorised, by a power of attorney, to sigo any instru merits that might be necessary lo carry on the affairs of the firm, for, and in the name of Currell, Ure, Donald & Co. At the time thi custom-house bonds were signed, which mak< a part of the evidence in this soil, he had nr power to act for the new firm of Currell & Co,, in affixing their signature to obligatory writ logs. In consequence of this want of power or authority, he entered goods at the customhouse, iu the name of Currell, Ure, Donald & IJo., which were in reality consigned to Carrel! & Co., and gave bonds for the duties, in the names of the former company, in which Davidson became surety. In reciprocation, Mal-cont Nicholson signed their names, as sureties. to the bonds of Davidson, which were: paid off and discharged by them, leaving the principal their debtor, to the amount of the item now claimed from the defendant.

The main question arising out of this statement of facts, is whether the firm of Currell, Ure, Donald, & Co. or that of Currell & Co. took on themselves the risk of this suretyship..

It is evident that the agent in this business knew that he was acting without authority, or under a void power; as that derived from the firm necessarily became null, on its dissolution, at least in relation to those persons who were acquainted with that event, however it may have authorised him to bind his constituents, in contracts with those who did not nor could not know of the revocation,of-his * sower. By the act of Nicholson,iCterelly üre,;, Donald, ⅝ Co. were perhaps legallyhound to;: pay the duties secured by the bonds of David-/: -on ; because the collector had no knowledge:; of the nullity of the authority under whipfehe" assumed to act; but having knowingly acted . . , without authority, and against the interest oí those for whom he assumed power, he might pj-obabJy be held responsible to them in damages, Currell & Co. are in no manner legally bound by the act of the agent, in signing the bonds; for it is not pretended that he was in any shape authorised by them prior to this assumed agency. But it is contended for the plaintiffs, that the defendant has subsequently ratified and sanctioned the acts of the attorney, and thereby made himselfliable for contracts thus entered into by him. We look in vain for any evidence on the record, which establishes an express ratification of Nicholson’s acts, as obligatory on the appellant; and it cannot fairly be implied from silence, because, opposed to such implication, is his conduct in placing Davidson as a debtor to the old concern, in consequence of the payment made by them for his benefit.

Admitting that the defendant is under no legal obligation to refund to the plaintiffs the rswms by them paid, in discharge of the:: bonds above stated ; they say that he is bound in equity and good faith, to bear the loss occasioned by their suretyship, as it was entered into for his accommodation and benefit. If, for the sake of argument, we allow this to be true, it would only create an imperfect obligation, not to be enforced by a court of justice. But how he has profited by the event is difficult to perceive: he may, and probably-did, profit by the act of Nicholson, in giving bonds for the duties on the goods consigned to Cur-rell & Co., in the names of the old firm: about, these there is no question. In what manner can he be said to have profited by the engagement entered into for Davidson’s benefit ? not by being obliged to bear the loss which will probably be suffered, in consequence of the inability of the principal to refund to the sureties. This loss was not occasioned by any act of lhe defendant, or other person authoris-ed by him. He is not enriched by the transaction, at their expense; for the supposed benefit which he may have derived from the,circumstance of entering at the custom-house the goods consigned to his new firm, in the name of the old, then extinct, has a bearing too remote, if any, to be considered' in relation to the present dispute.

It is therefore ordered, .adjudged and de.creed, that the judgment of the district court be avoided, reversed, and annulled; and it ⅛ further ordered, adjudged and decreed, that the plaintiffs do recover from the defendant $607 1; and that the plaintiffs and appellees pay the costs of this appeal.

Emits for the plaintiffs, Workman for the defendant.  