they be within the scope of the partnership's business, or whether the partnership derive any benefit therefrom. A partnership is liable for all torts committed by its agents or servants within the scope of their employment, even though the agent or servant who committed the particular wrong were employed and paid exclusively by a sole managing partner." The liability of the firm for the torts of a partner, like its liability on his contracts, depends on the question of his agency;"" and it will be liable, if it would have been liable for a similar wrong committed by an unauthorized agent, not a member of the firm, entrusted with the management of the firm's business." As a general rule, the firm, and, therefore, the partners, will be liable for the torts of a partner committed in the prosecution of its business, if they be within the scope of that business;" but not for wrongs committed outside of the usual course of the business, unless they be beneficial to the partnership, and assented to or approved by the other members of the firm." 51. One partner cannot involve another in a trespass, unless in the ordinary course of the partnership's business, and in a case where the trespass is in the nature of a taking, which is available to the partnership; and, in such a case, to render the partner liable who did not join in the commission of trespass, he must afterwards have concurred and received the benefit of it." Mere knowledge, or passive consent, or acquiescence, will not render a partner liable for a personal wrong committed by his copartner, such as an unwarranted There must be consent of such a character as to amount to advice and cooperation." Moreover, a partner will be held liable for the torts of his copartner, on the ground of approval or ratification, only when the act was within the scope of the partnership's business, or resulted in a benefit to it."* If it be without the scope of the business arrest. 87 18 Wend. N. Y. 175 (1837). 88 77 Pa. 118 (1874). 8956 Ill. 360 (1870). 90 87 Ill. 508 (1877). 914 Blatchf. (U. S.) 129 (1858). 92 69 Ill. 478 (1873); 115 Ill. 331 (1885). 93 115 Ill. 331 (1885). 94 87 Ill. 508 (1877). and no benefit accrued to the firm from it, it cannot be ratified so as to bind others." An act which is made wrongful or illegal by statute is not generally such as is within the scope of the partnership's business, and the other partners will not be charged thereby without proof of authorization or ratification. But a partnership will be liable for a breach of the revenue laws by a partner. Though wilful and malicious wrongs committed by a partner are, as a general rule, not within the scope of his agency, and cannot be charged against his copartners, yet, the latter will be liable for his fraudulent or malicious conduct done without their knowledge, if it be within the scope of the partnership's business, and were done for the benefit of the partnership; as, for example, when the partnership is engaged in publishing a newspaper, all the partners will be liable for the publication of a false and malicious libel, published by one without the knowledge of the rest."" Since the collection of debts is part of the ordinary business of a partnership, the firm will be liable for a tort committed or authorized by a partner in the usual course of collection, such as the seizure and sale under execution of the property of a stranger;" but the adoption of an unusual or illegal method of collection, outside of the ordinary scope of the business, such as an unwarranted arrest, or a criminal charge with the object merely of forcing payment, will not render the other partners liable, unless they authorized or cooperated in such action.” 52. The firm will be liable for the fraud or misrepresentation of a partner in the conduct of the partnership's business, wherever the act done would have been binding if it had been without taint. This is on the principle that where one of two innocent persons must suffer by the act of a third person, he shall suffer who has been the cause of the confidence and credit reposed in such third 95 115 Ill. 331 (1885). 97 69 Ill. 360 (1873). 98 115 Ill. 331 (1885). person." If, in the conduct of the partnership's business and with reference thereto, one partner make false or fraudulent misrepresentations of fact to the injury of innocent persons who deal with him as representing the firm, and without notice of any limitations upon his general authority, his partners cannot escape pecuniary responsibility therefor upon the ground that such misrepresentations were made without their knowledge. This is especially so when the partners, who were not themselves guilty of wrong, receive and appropriate the fruits of the fraudulent conduct of their associate in business.100 Thus, the other partners will be liable for fraud or misrepresentations in the sale of partnership property," or for the delivery of articles of less value than those purchased, or in contracting debts on account of the firm. But the fraud of a partner in the sale of his interest in the firm will not affect the firm.103 101 102 Where money or other property is obtained by a partner wrongfully, and is added to the firm's assets, or is used for the purposes of the firm, all the other partners are liable therefor, whether they knew of the wrongful act or not, since they received the benefit of it.10 Where money or other property comes into the possession of the firm or of a partner rightfully, as a deposit or trust to be used in the firm's business, its misappropriation or misapplication by one partner renders the others liable for its conversion, whether they knew of it or not, and even if they were ignorant that the partner had any such property in his custody. If one member of a firm solicit business and abscond with money collected, or if money received for purposes of investment be appropriated by one partner, who gives a forged mortgage for it, the other partners are liable.10 But, if the money or property be obtained by the partner in the course of a transaction which has no connection with the firm's business, his misappropriation of it will not render an innocent copartner 99 25 N. Y. 595 (1862); 26 Minn. 123 (1879); 1 Metc. (Mass.) 563 (1840). 100 114 U. S. 555 (1885). 10154 N. Y. 1 (1973); 33 Conn. 380 (1866). 10256 Ill. 360 (1870). 103 84 Ill. 517 (1877). 105 104 15 Mass. 75 (1818); 87 Ill. 508 (1877). 1054 La. Ann. 490 (1849); 4 Rawle (Pa.) 120 (1833). 1068 Cow. (N. Y.) 253 (1828). liable, though his connection with the firm afforded him the opportunity to commit the wrong.17 The improper use by a partner of funds held by him as executor, guardian, or trustee, either in the partnership's business, or in paying its debts, will not render the firm liable to the beneficial owner of the funds, unless the other partners knew that the funds were held in trust at the time when they were so misapplied. But, if they were aware of that fact, they are liable; 10 and even where they were ignorant, if the fund can be traced, and the firm be not a purchaser for value, the beneficiary can recover it from the firm. One partner is not criminally liable for the act of another, unless he participated in it, or is made liable by statute.' 109 53. Contribution Between Partners. - When one partner is compelled to pay the whole of a partnership debt, after the assets are exhausted, he can recover from his copartners their just proportion of the amount he is compelled to pay. The proportion due by each one may be regulated by the articles of partnership; but, if not, all are liable equally, in the proportion indicated by the number of solvent partners. When all contribute to losses, but some only put in capital, the others contributing services, the former can recover from the latter, on dissolution, their due proportion of any impairment of capital." As a general rule, persons who are jointly liable for wrongful acts cannot recover contribution from each other; but this rule does not apply strictly to partners. When one partner is compelled to pay for the wrongful act of an agent or servant, he can recover from the others their just share; and, if an innocent partner be compelled to pay for the wrongful act of another in which he did not participate, he can recover contribution from his copartners. 107 18 L. R. Eq. (Eng.) 621 (1874). 108 44 Ohio St. 69 (1886); 89 Pa. 163 (1879). 109 13 Bush (Ky.) 353 (1877). 110 119 Mass. 38 (1875). 111 18 Pa. 33 (1851). |