dissenting.
The majority, and I am sure inadvertently, neglects to include certain uncontroverted facts. At the execution of the contract in question here, $100.00 changed hands. It has not been returned and the partnership evidently feels no compunction in retaining it. Some considerable time elapsed between the signing of the instrument and the decision of Voeller not to honor the contract on behalf of the partnership. During that period of time, Hodge was placed in possession of the property in question, made extensive improvements thereon, including the placement of a commercial office structure thereon which Hodge rented to a third party for the sum of $75.00 per month. While it is true that Hodge’s count for damages for breach of the contract was dismissed by the trial court, that action of the trial judge was, in my judgment, undoubtedly the result of his decision to grant specific performance. The majority’s reversal with directions to enter judgment for the defendant effectively prevents Hodge *401from ever recovering any of his uncontroverted damages resulting from Voeller’s breach of the contract.
It should be remembered that Voeller clearly admitted the execution of the contract of sale on behalf of the partnership. Such was not denied by the other partners, who in fact counterclaimed against Voeller for the damages the partnership might sustain by reason of the sale. It is uncontroverted that, as Hodge stated, the property involved has undergone an enormous increase in value since the execution of the contract. Undoubtedly, the trial court viewed the defense protestations of Voeller’s lack of authority in that light. Indeed, Voeller testified that the sole reason the transaction was not consummated was that he later came to believe that such a sale would amount to a subdivision of the theatre property and hence result in the partnership property being brought into the city limits with a resultant increase in taxes.
Although the trial court allowed the self-serving testimony of both Voeller and Harris regarding the scope of Voeller’s authority, the trial judge was careful to note that he did not consider such testimony to be binding on him. In such ruling, I believe he was correct. Certainly, objection to Voeller’s testimony could have been sustained on the basis that he was estopped to deny the authority which he had asserted in writing to the detriment of Hodge. The trial judge may very well have believed that the testimony of both Voeller and Harris was self-serving, improbable, and even perhaps violative of the parole evidence rule. It should be noted that the question might have been resolved by reference to the articles of partnership. The lack of the introduction of those articles or any reference to specific parts thereof may well have led the trial judge to conclude that the defendants had failed to carry their burden of proof regarding the lack of authority in Voeller.
Contrary to the assertions of the majority, the record reveals that the partnership had not too long before the instant transaction sold real estate in Emmett, including the entire theatre business located thereon. Further, one of the partners testified that the entire land owned by the partnership was not necessary to the business and he might very well consider establishing a drive-in restaurant business thereon.
In my mind, I.C. § 53-309(1) is controlling when it states, “every partner is an agent of the partnership * * * unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.” (Emphasis added.) To me, the inclusion in the statute of the conjunctive “and” is contradicted by the “authority” cited by the majority, which converts the conjunctive “and” into the disjunctive “or.”
Here, Hodge’s testimony, which the trial court was at liberty to believe, was that Hodge had no knowledge but that Voeller had the authority to enter into the transaction on behalf of the partnership. Indeed, Voeller so executed the instrument in the name of the partnership.
I am indeed startled at the following assertion of the majority: “ * * * and obviously the partnership was not engaged in the business of buying and selling real estate.” The murky and complicated history of the partnership clearly demonstrates to the contrary. As revealed in the record, what had been originally partnership property (such as three theatres in Burley, Idaho) had been somehow converted into corporate assets. The businesses in which Harris and Voeller were involved, in either partnership or corporate form, at various times included theatres in Logan, Utah, Jerome, Idaho, Emmett, Idaho, Burley, Idaho, Rupert, Idaho, Ontario, Oregon, Lovelock, Nevada, Evanston, Wyoming, Montpelier, Idaho, Buhl, Idaho, Carson City, Nevada, Nyssa, Oregon; real estate businesses in Rupert, Idaho, Montpelier, Idaho, Carson City, Nevada, Nyssa, Oregon; and hotel operations in Burley, Idaho and Evanston, Wyoming. Exactly what real estate transactions were involved between the partnership and these various corporations is unclear. However, the record is clear that the *402■partnership did purchase real property, that the partnership did sell real property, and that Voeller himself, on behalf of the partnership, engaged in the rental of property to other persons, including the leasing of the theatre operation in Lovelock, Nevada. On the basis of the above, I cannot agree with the majority’s characterization of this partnership, but again would agree with the trial judge in his undoubted conclusion, albeit unstated, that the partnership failed to carry its burden of proof that the transaction in question here was outside the authority of Voeller and outside the usual and ordinary course of business of the partnership.