Gurler v. Wood

The defendants in this case constituted a firm and as such were creditors of Barker. One of them, Wood, caused an action to be commenced to recover the debt, and service of the writ to be made by attaching the property which is the subject of this controversy. The evidence further shows that since this suit was commenced judgment has been recovered by the firm against Barker, and this property has been sold by the officer on their execution and its. avails applied to satisfy the debt.

*541The question is whether upon this evidence the jury could justly have found that the Halls as well as Wood were guilty of the conversion of the property, if shown to their satisfaction to have been that of the plaintiff.

There are a variety of cases in which the members of a firm have been held to bo implicated in the tortious acts of one or more of their number. Several cases are referred to in the treatise of Mr. Justice Story, who deduces from them the general proposition, that torts may arise in the general course of the business of the partnership for which all the partners may bo liable, although the act may not in fact have been assented to by them. Among other cases which he cites for illustration, is that of an agent of a firm causing a loss or conversion through negligence ; also the ease of goods lost on board the ship of a firm through the negligence of the master. Story on Part., sec. 166.

Those cases evidently proceed upon the idea that the relation of principal and agent is fairly established, between the firm and the immediate author of the wrong. Other cases cited by him in the same connection, demonstrate that a member of a firm committing a tort may in some cases involve his associates in a general liability to an action sounding in tort in favor of the injured party.

In Nicoll v. Glennie, 1 M. & S. 592, a case is supposed by Lord Ellen borough of goods seized by a sheriff which he had not a right to retain. In that case the act of the sheriff is considered as the act of the executive creditor, by his adoption of the levy, and he is therefore, with the sheriff, a trespasser upon the principle of “ omnis ratihabitio,” &c.

Now if it be open to a doubt, whether an attachment of goods in an action in behalf of a firm, commenced by one of the partners without evidence of the concurrence of the others, be, if unlawful or otherwise, the act of the firm, we think that all doubt is removed, when a judg*542ment has been recovered, and the' goods sold, and the avails applied on execution in behalf of the firm, that there is evidence from which the jury might well infer that there was complicity from the first. The perception of the direct avails of the act amounts to a ratification of it.

Judgment on the verdict.