Where bills are drawn by partners in trade, the general authority implied by the custom of merchants binds each partner; but not so where the partnership is not of a commercial nature, such as that of attorneys, for instance, in which case it must be shown that the party accepting or drawing had special authority to do so, even where it is done in the name of the firm (q). Where one partner signs for the firm, being authorized to do *so, and describes himself as signing for the firm, he is not separately liable, but the firm alone (r). If he accepts, professing to have authority
(p) 1 Car. & K. (47 E. C. L. R.) 580.
(q) Hedley v. Bainbridge, 3 Q. B. (43 E. C. L. R.) 316; Levy v. Pyne, 1 Car. & M. (41 E. C. L. R.) 453.
(r) Ex parte Buckley, In re Clarke, 14 M. & W. 469, overruling Hall v. Smith, 1 B. & C. (8 E. C. L. R.) 407. 474 which he has not, a bill addressed to the firm, he makes himself liable thereby (s).
It will be concluded from the nature of partnership authority, that partners are not liable for the fraudulent contracts of a copartner, if they can prove the knowledge of the fraud by the plaintiff (t). Neither are they bound where an express warning was given to the plaintiff by the partners sought to be charged.
There are two other classes of agents so commonly employed, and that upon business so important, that a few propositions of law respecting them will be useful; these are brokers and factors. Factors are entrusted with the possession of the property they are to dispose of; brokers are entrusted with the disposal, but not with the possession (u).1 The latter, therefore, are mere middle men between the two parties contracting, and *cannot sue in their own name upon contracts made by them as brokers (x). Neither are they in general liable upon contracts so made; although they may be made so where there is an usage in the particular trade to make the broker, though contracting as
(s) Owen v. Van Uster, 10 C. B. (70 E. C. L. R.) 318; 20 L. J. (C P.) 61, S. C; Nicholls v. Diamond, 23 L. J. (Ex.) 1; 9 Ex. 154, S. C.
(t) Musgrave v. Drake, 5 Q. B. (48 E. C. L. E.) 185.
(u) ' A broker for sale is a person making it a trade to find purchasers for those who wish to sell, and vendors for those who wish to buy, and to negotiate and superintend the making of the bargain between them." Blackburn on the Contract of Sale, p. 81.
(x) Fairlie v. Fenton, L. R. 5 Ex. 169, 39 L. J. (Ex.) 107. As to the distinction when the signature is followed by the words " as brokers," and where it is followed by the words "'brokers" only, see Hutcheson v. Eaton, 13 Q. B. D. 861.
1 Hence a broker has no implied authority to accept payment for the goods, and the general rule is that such a payment is not a discharge and cannot be set up as a defence to an action by the principal for the price. Of course the existence of circumstances showing implied assent of the principal that the broker shall receive payment will bind him. See Kymer v. Suwercropp, supra, p. *447; Irwine v. Watson, 5 Q. B. D. 102, 414; Whiton v. Spring, 74 N. Y. 169; Putnam v. French, 53 Vt. 402.
Such, personally liable, in the event of his not disclosing the name of his principal (y). And evidence of such usage is admissible, even though the contract of side be in writing. The contract between the parties employing the broker is the contract of employment, and not the contract of sale, and the custom is attached to the employment (z). Brokers, by force of the stat. 6 Ann., c. 16, cannot practise in London without being admitted by the Mayor and Aldermen, when they take an oath, and formerly entered into a bond for the observance of certain regulations (a). We have *seen (b) that a person acting as a broker in London without being duly qualified, cannot recover compensation (c). Brokerage relates to goods and money, and not to contracts for labour (d); therefore, a stock broker is within the statute (e), but not a ship-broker (f), or an auctioneer (g), or one who procures and hires persons to work for another, in surveying lines of railway (h).
(y) Fleet v. Murton, L. E. 7 Q. B. 126, 41 L. J. (Q. B.) 49; and see ante, p. *452.
(z) Fleet v. Murton, supra, at pp. 128, 133, L. R., at p. 51, L. J. See also Humfrey v. Dale, 7 E. & B. (90 E. C. L. R.) 266, 26 L. J. (Q. B.) 137; S. C. in Exch. Ch., E. B. & E. (96 E. C. L. R.) 1004, 27 L. J. (Q. B.) 390; Hutchinson v. Tathara, L. R. 8 C. P. 482; 42 L. J. (C. P.) 260.
(a) Kemble v. Atkins, Holt N. P. (3 E. C. L. R.) 427; 6 Anne, c. 16; 57 Geo. 3, c. lx.; 10 Anne, c. 19, s. 121. The Mayor and Aldermen have no longer any power to require a bond. 33 & 34 Vict., c. 60 (London Brokers Relief Act, 1870), s. 2. But after the 29th of Sept., 1886, the admission of brokers by the Court of Mayor and Aldermen is rendered no longer necessary by 47 & 48 Vict., c. 3 (London Brokers Relief Act, 1884), s. 2. See ante, p. *252, n. (m).
(b) Ante, p. *252.
(c) Cope v. Rowlands, 2 M. & W. 149; Smith v. Lindo, 27 L. J. (C. P.) 196; 4 C. B. (N. S.) (93 E. C. L. R.) 395; 5 C. B. (N. S.) (94 E. C. L. R.) 587 in Exch. Ch.
(d) Milford v. Hughes, 16 M. & W. 174.
(e) Clarke v. Powell, 4 B. & Ad. (24 E. C. L. R.) 846.
(f) Gibbons v. Rule, 4 Bing. (13 E. C. L. R.) 301.
(g) Wilkes v. Ellis, 2 H. Bl. 555.
(h) Milford v. Hughes, supra.
Where brokers keep a book and enter in it and sign all contracts made by them, which in London they were required to do by their bond (i), then this entry, so signed by the broker who has negotiated the sale and purchase of goods, would constitute the binding contract between the parties (k), whose agent for making it the broker is (l). But in practice the bought and sold notes, which are memoranda of the purchase and sale, signed by the broker, and sent to the parties, are considered as constituting the complete proof of the contract. *In strictness, however, it seems that they do not constitute the contract (m).