Back
MIRAMPILLAI v. PASSE & Co.
NLR16V310
1913 Present:
Pereira J. and De Sampayo A.J.
MIRAMPILLAI v. PASSE & CO.
117-D. C. Colombo, 34,971.
Partnership-Power of one
partner to bind the others by granting promissory notes on behalf of the
firm-Trade.
In the case of a trading firm one partner has in law the power to bind the other
partners by granting on behalf of the firm promissory notes for the purposes
that fall within the scope of the ordinary business of the firm. In the case of
other partnerships one partner has no such power without express or implied
authority. Authority would be implied if the other partners by their conduct led
the public to believe that each partner had the authority of the firm to grant
notes, or if it be proved that it was usual or necessary in the case of
companies generally instituted for purposes similar to those of the partnership
in question to issue promissory notes for the purpose of carrying on their
business.
The word " trade " has now the technical meaning of buying and selling with or
without profit, although it is in some of the older enactments used in a wider
sense.
THE
facts appear in the judgment.
Elliott, for plaintiff, appellant.
A. Drieberg, for defendants, respondents.
Cur. adv. vult.
June 10, 1913. PEREIRA J.-
The two defendants were members of the firm of Passe & Co., and the question in
this case is whether D. A. Passe, the first defendant, had any right to bind the
second defendant as a member of the firm by granting to the plaintiff the
promissory note sued upon, by him. If the firm were a trading firm, there could
be no question that the first defendant would have full power to incur liability
on behalf of the firm as a party to a bill or note for any purpose of the firm
that fell within the scope of its ordinary business, and that the signature by
him of the firm's name would bind the second defend ant equally with himself;
but on the material before me I am not prepared to hold that the firm of Passe &
Co. was a trading partner ship. Although the word " trade " is used in some
legislative enactments to mean or include an art, craft, or mystery, it appears
to have now the technical meaning of buying and selling. Thus " fanning," as
observed by Willes J. in the case of Harris v. Amery,1[ L. R. 1 C. P. 148,154.]
" is a business though not a trade, and banking is not strictly a trade." In
Grainger v. Gough 2[(1896) AC. 325,345.] Lord Davey observed as follows: " Now,
what does one mean by a trade or the exercise of a trade?
Trade in its largest sense is the
business of selling, with a view to profit, goods which the trader has
either manufactured or himself purchased." As regards the matter of profit, Lord
Coleridge C.J. in In re the duty on the Estate of Incorporated Council of Law
Reporting1[22 Q. B. D. 279, 298.] observed that although it might be true that
in the majority of oases the carrying on of a trade did, in fact, include the
idea of profit, yet the definition of the mere word "trade " did not necessarily
mean something by which a profit was made. If then the defendant's firm was not
a trading partnership, it is necessary that, in order to entitle him to succeed,
the plaintiff should establish that the first defendant had authority to bind
the firm by means of promissory notes. This authority may, of course, have been
other expressed or implied. Clearly the first defendant had no such express
authority. As I read the deed of partnership, it prohibits the granting by one
partner, in the name of the firm, of promissory notes, and the deed speaks of
such an act as the granting of notes as a " breach of the provisions " of the
clause containing the prohibition. As regards implied authority, there would, of
course, be such authority if the second defendant by his conduct led the public
into the belief that the first defendant had the authority of the firm to grant
promissory notes, but there is no evidence to show
