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December 1, 1859


THIS case was brought up by writ of error from the Circuit Court of the United States for the middle district of Tennessee. The suit was brought upon three bills of exchange, which were accepted and paid by Bullitt, Miller, & Co., the drawees, for the accommodation of the drawers, Dement, Kimbro, & Sons, of which firm Joseph Kimbro was a partner. This action was brought by Bullitt, Miller, & Co., against Joseph Kimbro alone. The place of business of the firm of Dement, Kimbro, & Sons, was in Mississippi. Kimbro resided in Tennessee, and therefore was sued there. The defence set up in the court below rested on two grounds, viz: 1. That Dement, the principal acting partner of the firm of Dement, Kimbro, & Sons, had no power to draw the bills sued on. 2. That the bills were drawn for the purpose of raising money to be laid out in the purchase of slaves to be carried into Mississippi for sale; which slaves were so carried in and sold, contrary to laws of Mississippi. On the trial, the judge charged the jury in the following words: 'The court charge the jury that Dement, the principal acting partner of the firm of Dement, Kimbro, & Sons, had power to draw the bills given in evidence, according to the proof adduced to them, if true; that if the bills were accepted and paid at maturity by the plaintiffs for said firm, the defendant, Joseph Kimbro, was responsible, and it mattered nothing to the plaintiffs how the proceeds of the bills were disposed of, as this was a fact the plaintiffs could not know, and were not bound to prove.' This ruling was excepted to, upon which the case was brought up to this court. It was argued by Mr. Benjamin for the defendants in error, no counsel appearing for the plaintiff in error.

The opinion of the court was delivered by: The general doctrine is admirably summed up in the opinion of Chief Justice Marshall, in the case of a manufacturing partnership.

Mr. Benjamin said:1. The charge that Dement had power to draw the bills was correctly given, and is sustained by the proof.

The witness, Ready, deposed that he knew the firm of Dement, Kimbro, & Sons, in or near Lexington, Holmes county, Mississippi; that Joseph Kimbro was a member of the firm; that the firm commenced business on the 1st January, 1853, and continued till the death of Dement, one of the partners, on the 3d October, 1853; that the business of the firm was farming, steam saw-mill, and general trading, and that Dement was the principal business partner.

The witness, West, confirmed the depositions of Ready, and added, that 'Dement was the principal financier of the firm of Dement, Kimbro, & Sons, did the principal trading, borrowed money, and paid it back, &c., in the name of the firm.'

The partnership articles, as introduced by defendant, provide for a copartnership between Dement, the defendant, Joseph Kimbro, and the two sons of the latter, 'for the purpose of farming, and also of running a steam saw-mill–the parties of each part to furnish one-third of the capital stock of the partnership, or the said party of the second part to furnish two-thirds of said capital stock, on behalf of himself and his two sons, parties of the third part; and the said parties are to furnish negroes or hands, stock, provisions for man and beast, and all necessary utensils, in the same proportion, and are to pay and defray the expenses of said copartnership, and share its profits in the same proportion; * * * and the said parties of the third part are to superintend–one of them the said farm, and the other the said mill; and the said party of the first part is to render them such needful assistance as he can, without any extra charge therefor; and at the expiration of said two years, after paying the debts of said copartnership, the profits are to be equally divided between said parties of the first, second, and third parts, & c.'

Botters, a witness for defendant, testified that 'said firm, so far as I know, has never been held out by any of the Kimbros as having any more extensive powers than those conferred by said articles–(Joseph Kimbro, senior, the defendant, left here for Tennessee either a day or two before or a day or two after said articles were signed, and did not return until next fall;) nor did ever said Dement do so with the knowledge of defendant, so far as I know.'

'Planting and mill partnerships in this country are not numerous, and it is no easy matter to say what powers are by usage exercised by the several partners, without the express consent of their copartners in such partnerships; but among the few partnerships of the kind that have come to my knowledge, where money had been needed, and the several partners cannot be consulted, the managing one raises the money on his own credit, and charges the same to the partnership.'

On the foregoing testimony, it is plain that even inter se there was such a trading partnership as authorized the drawing of bills by one partner in the name of the firm; although the farming business might not authorize the exercise of such a power, running a saw-mill for two years necessarily required the purchase of the requisite stock of wood, and its re-sale as boards, planks, scantling, &c. The business of running a steam saw-mill is neither more nor less than a manufacturing business, requiring the purchase of raw material and sale of the manufactured article; all such partnerships are trading partnerships, in which the power to draw bills of exchange in the partnership name is vested in each partner.

In mining partnerships, and farming partnerships, it has been held that such powers are not vested in the partners; and the reason is, that their business is simply to sell the produce of the real estate, to make profits out of the soil by gathering its fruits; but wherever the business imports in its nature the necessity of buying and selling, the partnership is in its essence a trading partnership.

Winship v. Bank of the U. S., 5 Peters, 529.

So it was held that one partner could bind the firm by a promissory note, where the partnership was for carrying on the business of farming and coopering.

McGregor v. Cleveland, 5 Wendell, 475.

And although there be no partnership in real estate, the parties being tenants in common, yet if they are common tenants of timber land, and do a lumber business, they are trading partners in the timber cut from the land.

Baker v. Wheeler, 8 Wendell, 505.

Coles V. Coles, 15 Johns. R., 160.

Partners in a steam saw-mill are bound by the note of the partnership given by some of the partners for partnership purposes.

Johnston v. Dutton, 27 Alabama, 245.

And even where the partnership is limited, a note by one of the partners, in the name of the firm, is prima facie for the firm's account.

Holmes v. Porter, 39 Maine, (4 Heath,) 157.

See, also, Story on Partnership, ...

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