McConnell v. Denver

By the Court, Sawyer, C. J.: We think the evidence insufficient to justify the third finding, to the effect that the defendants executed the note upon which the action is brought, by their agent, Denver, and that said Denver had full power and authority to make and execute said note, by virtue of his being a partner in and agent for the company.

There is no conflict in the evidence as to the material facts in the case, and it shows, that the defendants constituted one of the ordinary unincorporated ditch companies so common in the mining regions, owning a ditch which conveyed water from a certain stream to a distant mine, for sale to the miners for mining purposes'. The interests were held by the owners in different proportions, in shares, represented by certificates of stock, which were bought and sold at the pleasure of the owners, without consulting their có-owners. The ordinary relations of the stockholders in these associations, like those in the usual mining companies, organized and conducted upon similar principles, and sometimes called mining partnerships, are not those of strict commercial partnerships, but are more in the nature of tenancies in common. (Bradley v. Harkness, 26 Cal. 77; Skillman v. Lachman, 23 Cal. 201; Duryea v. Burt, 28 Cal. 587; Abel v. Love, 17 Cal. 237; Set[370]tembre v. Putnam, 30 Cal. 493.) Some of the incidents of a partnership pertain to them, and some of mere tenancies in common, but the powers of the several members by virtue of being members are different from those of commercial partnerships. A member of one of these associations has no general authority, by virtue of such membership, to bind the company by his contracts, Hor has the managing agent any authority other than that conferred upon him, either expressly, or by necessary implication from his acts recognized by the company, with full knowledge of the acts at the time of the recognition. (Skillman v. Lachman, supra.) The finding of the Court evidently resulted frotii overlooking this distinction between commercial partnerships and associations of this character. The remarks of the Court in Skillman v. Lachman are in point: “ But there is still a more important objection to the findings and judgment in this case. There was no evidence of any authority having been given by the company, or Laehman to Sprout, a member of the company, and the managing agent, or foreman, to execute a promissory note in the name of, and binding tire company, for the indebtedness due the plaintiff, or any general authority to that effect. In fact, several members, including Laehman, testified that they never gave any such authority. It is clear that the law does not, in the case of mining partnerships, imply any such authority, either to a member of such partnership, or to its managing agent. In this respect the law is different from that of ordinary commercial partnerships. It was clearly the duty of the plaintiff to prove that the person executing the note in the name of the company had power and authority to do so. He might have had power to purchase the lumber for the use of the mine, but that is very different from authorizing him to execute a note in the name of the company, bearing interest at the rate of three per cent per month.” (23 Cal. 207.)