Post v. Pearson./Opinion of the Court

It is unnecessary to consider whether, if this were to be treated as a contract under seal, it could be held to be upon its face the contract of the Keets Mining Company, and not of Whitney only, or whether the oral testimony would have been admissible to charge Post; because, by the Civil Code of Dakota, 'all distinctions between sealed and unsealed instruments are abolished,' and 'any instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him, if such intent is plainly inferable from the instrument itself.' Civ. Code Dak. 1877, §§ 925, 1373.

By the subject-matter of this contract, which is the delivery and milling of ore from the Keets mine; by the description of Whitney, both in the body of the contract and in the signature, as superintendent of the Keets Mining Company; and by the use of the words 'parties of the first part,' which are applicable to a company and not to a single individual,-the contract made by the hand of Whitney clearly appears upon its face to have been intended to bind, and therefore did bind, the company; and, upon proof that Post was a partner in the company, bound him. Whitney v. Wyman, 101 U.S. 392; Hitchcock v. Buchanan, 105 U.S. 416; Goodenough v. Thayer, 132 Mass. 152.

The order sustaining Post's demurrer to the original complaint gave the plaintiff leave to amend, and did not preclude the plaintiff from renewing, nor the court from entertaining, the same question of law upon a fuller development of the facts at the trial on the amended complaint. Calder v. Haynes, 7 Allen, 387.

Judgment affirmed.