The action was brought against the defendants as common carriers, for failing to carry and deliver a quantity of iron taken on board their steam-boat for transportation.
The defendants and James Cassidy were the owners of the steamer Fayetteville, used upon the Cape Fear River to tow vessels across the bar, and when necessary, to lighter them also. She had received some iron belonging to the plaintiffs from the British schooner Invoice, and in consequence of the explosion of the boilers, the steamer was sunk and the iron lost.
There was a second count in the declaration against the defendants for negligence as bailees for hire, but this count was abandoned on the trial. *Page 264
The boat Fayetteville was in charge of Captain Davis, who was offered by the defendants as a witness. He was objected to by the plaintiffs on the ground of interest.
The defendants then offered a release in due form, but sealed by A. J. DeRosset, per R. F. Brown, and by R. F. Brown, the firm being composed of A. J. De Rosset, John Potts Brown and R. F. Brown.
The Court held the release insufficient, and excluded the witness. Defendants excepted.
Verdict and judgment for the plaintiffs. Appeal. After the plaintiffs had abandoned the count against the defendants as bailees for hire, "the gist" of which was negligence, it would seem that the evidence of the witness rejected, was immaterial, for upon the other count, the question of negligence did not arise; but as the witness was rejected upon the ground of incompetency, because of interest, the defendants are at liberty to avail themselves of the exception.
This Court is of opinion that the release was sufficient. Considering it as an act of the firm, by two of its members, we incline to the opinion that it was valid, although done "by a deed," for there is a distinction between the power of a partner to bind the firm to pay money, or to do any other act by way of contract, (in which cases it cannot be done by deed, for the reason, that the question in respect to the consideration, would be thereby concluded,) and the power to grant an acquittance, or execute arelease; for no consideration is necessary to give effect to these acts, and they can only be done by deed.
But in the second place, considering the release as the deed of the two members of the firm, by whom it was executed, it clearly has the effect of binding them so as to bar any action that they might institute; and it is equally clear that the *Page 265 other member could not maintain an action without joining them; in which case the release of two of the plaintiffs would be a bar to the action.
There is error. A venire de novo is awarded.
PER CURIAM, Judgment reversed.