
    
      PECHAUD vs. PEYTAVIN.
    
    East'n. District.
    
      Dec. 1815.
    Appeal from the court of the second district.
    The irregular act of an attorney may be binding on his constituent, by the implied ratification of the latter.
    The plaintiff in his petition, stated that the late firm of Reynaud and Peytavin being indebted to him in the sum of $2056, Reynaud and Peytavia, juniors, made their promissory note for the said sum, as attornies in fact to the said firm, payable to the plaintiff, one year after date; that the defendant, surviving partner of the said firm, has assumed the management and administration of its affairs and is liable to pay that sum, which he refuses to pay.
    The answer denies the execution of the note, and avers, that if it was executed, as stated in the petition, which is by no means admitted, the defendant is not indebted to the plaintiff for this, that the note was paid, and he further pleads that it was through error and mistake, that it was made for the sum therein specified.
    There was a judgment for $1056, in favor of the plaintiff and the defendant appealed.
    The statement of facts, which is made by the counsel of the parties, shews that the plaintiff introduced in evidence the note described in the petition: with a power of attorney given by the defendant to Reynaud and Peytavin, juniors, and one Lozon, to act jointly and severally in the sole case of the absence or death of one or two of them.
    The defendant introduced, as a set off, two orders for $500 each, drawn by the plaintiff, on Reynaud and Peytavin juniors, with a letter from the plaintiff to them, advising them of his having drawn those orders.
    Tricou, a witness in introduced by the defendant, deposed that he had paid one of these orders, after it had been protested, out of his own monies, bat that the defendant had reimbursed him.
    The payment of the other order was also admitted.
    
      Morel for the defendant.
    The judgment of the inferior court is erroneous and ought to be reversed. The firm of Reynaud and Peytavin had ceased to exist, at the time of the execution of the power of attorney, under which the note, upon which the present suit is brought was drawn. The defendant, therefore, could not constitute the persons, who appear to have signed the note, attornies of the firm. If Reynaud, the defendant’s partner, was still living, he ought to have joined in the power, which is of no validity without his concurrence.
    If we look into this power, we find that the person, who executed it, appointed three individuals, Raynaud, Pevtavin and Lozon, to act jointly for the firm—he granted the power of acting jointly to any two of them, in case of the death or absence of the third—lastly, to anyone of the three the power of acting alone, in case of the death or absence of the two others.
    Now, attornies bind their constituents, when they exercise their powers in the mode which they prescribed. The plaintiff must therefore shew that the note upon which the present suit is brought, was made by the persons who subscribed it, according to the authority which the defendant had vested them with. Reynaud and Peytavin subscribed it jointly: they could only do so, viz. without the concurrence of Lozon, in the case of his death or absence. It is therefore material for the plaintiff to shew his death or absence. We look in vain for any proof of this on the record: de non apparentibus it non existentibus eadem est lex. The court will conclude that neither of the two cases existed, and that therefore the subscribers of the note were without authority.
    
      
      Turner for the plaintiff.
    The point now raised does not arise from the pleadings. The authority of the subscribers to the note was not contested below. The defendant relied only on his plea of payment and error as to the quantum.
    
    If the defendant’s partner was dead, when he granted the power of attorney, then the affairs of the firm were absolutely under his control, and he could well appoint whom he pleased to manage them. If he lived, still the power given by Peytavin was valid. Each partner may do separately all the acts relating to the administration of the partnership’s affairs. Civ. Code, 394, art. 35, 37. One partner may authorise a clerk to draw, endorse or accept bills, 1 Dallas, 269.
    The note in suit, was in discharge of the plaintiff’s claim: if the defendant had paid it, admitting the irregular execution of it, the payment would he a ratification of an irregular act, and could not have been reclaimed. Now a partial payment will have the same effect. He has claimed and received the benefit of the monies paid by his agent, in discharge of the note. He has thereby admitted his approbation of the conduct of Reynaud and Peytavin, juniors, and must be bound by it.
   Mathews, J.

delivered the opinion of the court. The plaintiff and appellee sued the defendant and appellant, as surviving partner of the firm of Reynaud and Peytavin, and grounded his action on a promissory note, given by two attornies in fact, acting under an authority granted by one of the partners, to three persons jointly, empowering them to act severally only in case of the death or absence of two or one of them. Judgment having been given for the plaintiff, the defendant appealed.

His counsel makes two principal objections to the correctness of the judgment of the district court. 1st. In partnerships, one partner cannot without the consent of the other grant a power or procuration, in matters relating to the general concerns and interest of the firm. 2nd. Admitting the power in the present case to have been well given by one of the partners, yet being a joint power to these individuals, neither two or one of the attornies could act, so as to bind the principals, unless in the cases provided for in the letter of attorney, viz. in the events of the death or absence of one or two of the attornies.

I. Admitting it to be true, that one partner cannot give power to an agent, so as to vest him with the authority of the firm, (which is by no means clear) yet this objection can never be made against the acts of the attorney, by the very individual who constituted him.

II. As to the second objection, it is clear from the manner in which the letter is worded, that the authority given to the three persons jointly was only to vest severally in one, or jointly in two, in case of the death or absence of two or one of them. Two only having acted, in the present instance, without there being any proof of the absence or death of the third, their act can only be binding on the principals, unless some act has since been done, which gives it validity.

The power of attorney shews that the person who granted it was willing to confide his business to the care and, management of either of the persons authorised, on the happening of certain events, but that he preferred the joint skill of all. A majority have acted for him.

Among other pleas in his answer, he has pleaded payment, and it appears by the testimony of Tricou, that he refunded to this witness five hundred dollars, which had been paid by him in part discharge of the note given by Reynaud and Peytavin, juniors, his attornies: the subject of the present contestation.

It is the opinion of this court, that this act, taken in consideration with all the circumstances of the case, shews that he has so far approved and sanctioned the conduct of his agents as to give full force and validity to the note against himself.

It is therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  