Page:Federal Reporter, 1st Series, Volume 1.djvu/829

IN KB FRANKLIN M. KETCHOU. 821 �liantls a! the firm,may follow and recover it as his specifie prop- erty, yet that he cannot maintain an action, as for a debt, or as for money had and received, against the firm for it, if, as in this case, the money is spent and gone. �There are some points in regard to the liability of a firm for the misappropriation of the property of a third party well settled ; thus, if the firm bas assumed, or is properly charge- iiBle with, any duty in the safe-keeping of the property, the firm is liable for its misappropriation by one partner, although done without the knowledge of the other partners. This rule resta on the familiar principle that, within the scope of the partnership business, each partner is the agent of the firm, and the act of each partner, whether in making a contract, or in performing, or failing to perform, a duty imposed on the firm by contract, is the act of ail. And, where one of the partners is employed in a transaction or matter of business fairly within the scope of the business undertaken to be trans- acted by the firm, the faet that he was specially trusted by th/B customer, or that the business was transacted, so far as the firm was concerned, exclusively by him, and without tha knowledge oE the copartners, wUl not, in itself, make the transaction an individual transaction. �The question is one, in every case, of fact and of the inten- tion of the parties, the principle being that, if the business was fairly, as between the partners themselves, a firm mat- ter, in the benefits of which, under the co-partnership agree- ment, they were entitled to sbare, or if the customer, in fact, employed the partner as a member of the firm, engaged in the business, to which the particular transaction belonged, and was justified in so doing by the nature of the business of the firm, as publicly exhibited, then the transaction is a firm transaction, and in every such case the firm must mako good ail unauthorized intermeddling with the customer'a property, by either partner, in violation of the duty which the firm, or he, on behalf of the firm, bas assumed with regard to the property. �And it seems that the employment of a member of the firm, carrying on a particular kind of business, as, for in- ��� �