MacGeorge v. Chemical Mfg. Co.
MacGeorge v. Chemical Mfg. Co.
Opinion of the Court
We need not discuss the refusal of the court below to set aside the service of the summons. The return of the sheriff shows a good service; if the return is false, that officer is responsible. In this proceeding, it is conclusive upon the defendant. And if there were a defective service, it is cured by the appearance of the defendant, and the filing of an affidavit of defence. It is too late for the company to contend that it is not in court.
We think judgment was properly entered for want of a sufficient affidavit of defence. Granted that the secretary of the company had no authority to indorse the note in suit, yet the record shows that the company received the proceeds. There is a line of cases which hold that a person cannot repudiate the authority of his agent, and yet enjoy the benefit of his act. This case comes direcitly within the reason of the rule.
The position that this action cannot be sustained, because the plaintiff is a member of the limited partnership, is without merit. It is sufficient to say that he was not suing as a partner, but as a creditor, and not for dividends or profits of the business, but for a debt due by the company.
Judgment affirmed.
Reference
- Full Case Name
- WM. MacGEORGE v. CHEMICAL MFG. CO.
- Cited By
- 19 cases
- Status
- Published
- Syllabus
- 1. A sheriff’s return of a summons against a limited partnership, organized under the act of June 2, 1874, P. L. 271, as served by giving a true and attested copy thereof to a “ superintendent and agent ” of the company, and mating known to him the contents thereof, is a good return: Act of June 10, 1881, P. L. 115. 2. A good return of service is conclusive upon the defendant; if it be false, the sheriff is responsible therefor. Moreover, a defective service is cured by the appearance of the defendant and the filing of an affidavit of defence. After that, it is too late for the defendant to allege he is not in court. 3. In an action by a bona fide holder against a limited partnership, as the indorser of a note the proceeds of which were received by the company, an affidavit of defence averring that the secretary of the company had no authority to indorse the note for the company, is insufficient to prevent summary judgment. 4. A member of a limited partnership suing the company upon a note indorsed by it, is not suing as a partner, but as a creditor; not for dividends or profits, but for a debt due by the company; and ail objection that, because the plaintiff is a member of the defendant firm, the action will not lie, is without merit.