
    S. & J. Fant vs. A. L. & M. West.
    Action against both partners, on a single bill executed by one partner in the name of the firm : — Held, that it was admissible to show the consideration of the single bill and the course of dealing of the partners, in reference to other single bills, in order to raise the inference, that authority to execute the bill sued on had been given.
    BEFORE WHITNER, J., AT UNION, FALL TERM, 1856.
    GÍhe report of bis Honor, tbe presiding Judge, is as follows: “ This was an action of debt, on a single bill, payable to plaintiffs, for eigbty-two dollars and eighteen cents, at one day, bearing date 1st January, 1855, executed in tbe name of A. L. & M. West. Tbe defendants were partners, doing business at West’s Springs, in Union District. Tbe first named member of tbe firm principally conducting tbe business; tbe other member residing in one of the lower Districts, but occasionally at tbe Springs, and employed in tbe partnership affairs. This was a sealed instrument executed by A. L. West, tbe consideration of which I think I may say was satisfactorily shown to be for groceries purchased for tbe firm. Notwithstanding tbe objection of counsel, I admitted tbe following testimony in reference to tbe course of dealing of these partners: that in tbe liquidation of their accounts, notes under seal bad been frequently giren.; on one executed by A. L. West, suit bad been brought — a recovery bad, no defence being_set up, and payment of tbe judgment by M. West; another .nofeTsLljike kind bad^been executed by A. L. West, and bad1 been ■ paid off, esfcli-of tbs* partners making payments without objection to tbe form of tbe obligation. Another note under seal, executed by tbe same party bad been paid in part by tbe other member without any objection made to tbe character of the instrument. Other notes were in existence, but in no instance was it in proof that any had been executed by M. West in person, or by his express authority.
    “In submitting the case to the jury they were instructed that one partner could not bind his co-partner by an obliga-ligation under seal, without authority from such partner. That unless the proof satisfied them such authority had been given, covering this transaction, the defendant, M. West was not answerable, at least in the present action. That in the absence of direct proof of authority it might be inferred in some instances from the course of dealings, and the conduct of the partners themselves, and to this end, in this particular case committed to the jury the proof adduced.
    
      “ They returned a verdict for plaintiffs.”
    The defendant, Moses West, appealed and now renewed his motion for a non-suit, in this Court on the grounds:
    1. Because his Honor should have granted the motion for a non-suit, which was made on the circuit in this case.
    2. Because the note sued on was null and void in law.
    And failing in that motion then he moved for a new trial, on the ground:
    Because his Honor admitted illegal and incompetent evidence in the case, that is evidence to show what was the consideration of the note sued on, when from the state of the pleadings in the case, such evidence was not admissible, the action being on the sealed note, and no allegations whatever in the declaration as to the consideration of the note or the account for which the note had been given.
    Thomson, for motion.
    Arthur, contra.
   Tbe opinion of tbe Court was delivered by

Wardlaw, J.

Tbe single bill was not void, but, if executed by one partner with sufficient authority from tbe other, bound both. Tbe validity then depended upon evidence to be judged of by tbe jury; and in this case, we can only repeat what was said by Judge Nott, in tbe case of Sanders vs. Hughes, cited by Judge O’Neall in Flemming vs. Dunbar, 2 Hill, 533. “ Tbe evidence may have authorized an inference that such authority bad been given,- and that was a question for tbe jury.”

Tbe consideration of tbe single bill, beneficial to both partners, and tbe course of dealing shown by their conduct in reference to other such bills, were circumstances proper for tbe consideration of tbe jury, pertinent to tbe question which they were to resolve, and admissible under tbe issue made as to tbe joint execution of tbe instrument sued on.

Tbe motion is dismissed.

O’Neall, Withers, Whither, Clover, and MüNro, JJ., concurred.

Motion dismissed.  