The purpose of this action is to recover a personal judgment against defendant W. S. Eiddick on a bond, under seal, reading as follows:
Belhavek-, County of Beaufort, State of N. C.
$549.56. . Date, 13 May, 1910.
On or before the 1st day of November, 1910, with interest from maturity, payable annually, I promise to pay to the order of C. P. Aycock Supply Company five hundred and forty-nine and 56-100 dollars, for value ■ received, without offset, the homestead and all other exemptions are hereby waived as to the debt evidenced by this note.
Witness my hand and seal. D. M. WiNdley, (seal)
Purchasing Agent for Self and W. S. Riddick
and Melson Windley.
Witness: O. C. SwiNdell.
This bond was given for farm supplies and advances and was secured by an agricultural lien of same date upon a crop of cotton, corn and potatoes grown during year 1910 on a farm cultivated by the three defendants as partners. The agricultural lien also secured the sum of $215.88, balance due by the copartnership to plaintiff on advances for year 1909. The defendant Eiddick pleads the three years statute of limitation. This action was commenced 7 December, 1915.
It is too well settled to admit of dispute that where a written instrument is executed on behalf of a copartnership, and an individual partner signs the firm’s name and affixes a seal to it, the instrument is the simple contract of the firm, although it is the sealed covenant of the individual partner who executed it. An action is barred on such instrument after three years from the time the cause of action arose as to the copartnership and the members thereof, except as to the individual who executed the instrument and affixed the seal. Burwell v. Linthicum, 100 N. C., 147.
In Fronebarger v. Henry, 51 N. C., 548, Judge Ruffin declares the rule of the common law to be that one partner cannot bind another by deed by virtue of his authority as partner merely, and that such instru
Tbe learned counsel for plaintiff seeks to avoid tbe effect of tbis established principle by attempting to sbow tbe defendant Riddick ratified tbe act of Windley in executing a sealed instrument executed by a member of tbe firm, and wben so adopted and ratified it becomes tbe bond of eacb member as well as of tbe one wbo executed it. Day v. Lafferty, 4 Ark., 450. Notes to Bank v. Johnson, 14 Ann. Cases, 549, where tbe cases are collected. But these authorities also bold that “a partner cannot be charged with tbe ratification of a sealed note where it does not appear that be knew be was ratifying a sealed note.”
In view of these authorities we agree with tbe learned judge that there is no sufficient evidence of an adoption and ratification of tbe instrument as a covenant under seal.
It is true that Windley testified that “Riddick knew about tbe execution of the papers and why they were executed for tbe firm,” but there is no evidence that Riddick saw tbe papers or knew that a bond under seal bad been given. He knew that an agricultural lien bad been executed upon tbe crops for supplies and fertilizer, but as such an instrument does not require a seal, and as ordinary promissory notes require no seal, be did not know either from tbe character of tbe papers or from Windley’s statement that a sealed instrument that would bind him for ten years bad been executed. Neither do we think tbe evidence of payments shows a ratification of a sealed instrument. Tbe evidence is that Riddick operated tbe farm during 1910 and “received and applied tbe crops that were made.” Tbe answer of Riddick admits “that W. S. Riddick paid plaintiff tbe sum of $513.51 on or about 1 January, 1911.” A part of that money, it seems, plaintiff applied to tbe debt of 1909 and tbe balance of tbe bond sued on.
Tbis payment is no evidence of ratification, because it does not appear that Riddick knew that tbe instrument was under seal before be made it, and, further, because tbe payment was one Riddick was compelled to make. He was undoubtedly bound by tbe agricultural lien, and tbe law itself compelled tbe application of tbe crops to tbe discharge of such lien. It is an indictable offense to willfully refuse to so apply them and otherwise dispose of them.
It may appear on tbe next trial that Riddick knew of tbe character of tbe instrument and that be adopted and ratified it as a sealed instrument, but tbe evidence on tbe last trial was not sufficient to establish it.
Tbe order granting a new trial on second issue is
Affirmed.