#### D. FRONEBARGER v. JAMES L. HENRY.

A. bond made by one of the partners of a firm, for goods sold and delivered, may be evidence of the time for payment, or of the'amount, (as any other statement of one of the partners would be,) but it certainly does not amount to plenary proof of the consideration so as, of itself, to entitle the plaintiff to recover for goods sold and delivered.

Action of debt, for goods sold and delivered to the defendant, and one Colton as partners, under the firm of Colton and Iienry, and was tried before Bailey, J., at the Special Term, July, 1859. Plea. Nil debet.

The plaintiff gave in evidence two notes, under seal, payable to the plaintiff, and executed in the name of the firm, by Colton, which had become due before the suit was brought. The defendant insisted, that the instruments being under seal, did not bind him, and were, therefore, nol evidence of a sale and delivery of the goods. His Honor held that they were sufficient for that purpose, and there was a verdict and judgment for the plaintiff, and the defendant appealed.

Merriman, for the plaintiff.

N. W. Woodjm, for the defendant.

Rueein, J.

It is settled that instrnménts, like these, do not merge the simple contract of the firm, in respect of the partner not executing them. Therefore, the defendant would be liable in indebitatus assumpsit, or debt for goods supplied to the firm, which formed the consideration of the two bonds given, if, in truth, they were given for that consideration. But it is not seen that the bonds can bo evidence to that point, as against tlio firm or the defendant. The rule of the common law, that one partner cannot bind another by deed, by virtue of his authority as partner, merely, and that an instrument, like this, is the deed of the executing party alono, has been acted on so long and so frequently in this State, that it may be considered at rest here, and not open to qualification, notwith*549standing suggestions to the contrary, by respectable modem writers on mercantile instruments. If these had been promissory notes, they would have been within the scope of the partner’s authority, and bound all the partners prima facie, pro-prio vigore, or as evidence of dealings of the firm -on the common counts in assumpsit. But being under seal, they do not intrinsically bind the defendant, nor does the Court perceive on what ground they can constitute plenary evidence of a debt of the firm on any consideration. If there had been distinct substantive proof of a sale and delivery of goods to the firm, it may be, that those papers might be evidence of the amount of the bill, or the time of payment agreed for, or the like, as any other statement of one of the partners on those points. But they do not purport to express the consideration, on which they were given, and no rational inference can be deduced from the papers, by themselves, that they were given for goods sold, or for any other cause, in particular, affecting the firm. To allow them the operation claimed for them, would, in effect, make them conclusive on all the members of the firm, to the same extent, as if they had been bills or promissory notes, and, so, binding on all the partners, unless they showed they were given on a consideration that did not concern the firm. Whereas, it lies on the plaintiff, here, to show that the dealing was, in fact, with the firm, and these papers can, at most, be only evidence in aid of the points already mentioned. Per se, they certainly do not support the issue on the part of the plaintiff, and the judgment must be reversed, and a venire de novo awarded.

Pee Gueiam, Judgment reversed.