Langan v. Thummel. sought to take it out of the form of simple contract for the sale and conveyance of land. The writing provides that the "contract is to be strictly construed as to payments," but its language does not call attention to the question of time, and the language used exhausts its entire force and meaning on the other qualities of the act of payment, without necessarily reaching the question of time. Whatever may have been the meaning sought to be expressed by the professional draftsman of the contract, by the use of the words above quoted, it can scarcely be presumed that the plaintiff or her husband understood them to add anything to the ordinary obligation to pay, as a condition precedent to the right to demand a conveyance. I scarcely deem it necessary to comment upon the point as to whether there was a contemporaneous understanding between the parties that the money for the July payment was to come from the sale of plaintiff's cattle, but it appears that that was the means upon which she relied for the money for that purpose, and that without willful laches or inexcusable negligence on her part she obtained the money as an advance on her cattle, and tendered the same in discharge of such payment. The rule of law which we all think applicable to this case is so well expressed in the opinion by Mr. Justice Story, in the case of Taylor v. Longworth, 14 Pet., 171, cited by counsel for appellee, that I make the following extract from it: "In the first place, there is no doubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulation of the parties, or it may arise by implication, from the very nature of the property, of the avowed objects of the seller or the purchaser. And even when time is not thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the inter Warren & Co. v. Martin. mediate period, been a material change of circumstances affecting the rights, interests, or obligations of the parties; in all such cases courts of equity will refuse to decree any specific performance upon the plain ground that it would be inequitable and unjust. "But except under circumstances of this sort or of an analogous nature, time is not treated by courts of equity as of the essence of the contract; and relief will be decreed to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases the court expects the party to make out a case free from all doubt; and to show that the relief which he asks is, under all the circumstances, equitable; and to account in a reasonable manner for his delay and apparent omission of his duty." The judgment of the district court is affirmed. THE other judges concur. JUDGMENT AFFIRMED. 124 273 N. H. WARREN & COMPANY, PLAINTIFFS IN ERROR, V. Partnership: PAYMENT BY PARTNER OF INDIVIDUAL INDEBTEDNESS. In an action by copartners against a vendor for the proceeds of a bank check made by the partner, as manager of a firm of grain dealers, on their bank deposit, for house furniture for his separate use, Held, That it may be presumed, without allegations to the contrary, that the check was given on account of the partner's interest from profits in the business of the firm. ERROR to the district court for Fillmore county. Tried below before MORRIS, J. 44 121 Warren & Co. v. Martin. John P. Maule, for plaintiffs in error, cited: 3 Kent, 42, 43, 34. 1 Parsons on Contracts, 184. Story on Partnerships, Secs. 131, 132. Bigelow on Fraud, 146. Charzoures v. Edwards, 3 Pick., 5. Dob v. Halsey, 8 Am. Decisions, 293. Kingsbury v. Sharp, 28 N. W. Rep., 74. Livingston v. Roosevelt, 4 Am. Decisions, 273. Rogers v. Batchelor, 1 Am. Leading Cases, 546. Sauntry v. Dunlap, 12 Wis., 404. Fletcher v. Anderson, 11 Iowa, 228. Rutledge v. Squires, 23 Iowa, 53. Whitmore & Burnett v. Adams, 17 Iowa, 567. N. Y. Fireman Ins. Co. v. Bennett, 13 Am. Decisions, 109. John Barsby, for defendant in error, cited: Smith v. Smith, 5 Ves., 189. Walton v. Butler, 29 Beav., 428. COBB, J. This action was brought on error from the district court of Fillmore county, where judgment was rendered for the defendant. The plaintiffs, in 1885, formed a partnership with James Peabody, of Fairmont, Nebraska, for the purchase and shipment of grain at Fairmont and Geneva, Neb. Peabody, without contributing any money, managed the business, and was entitled to a certain share of the profits. As a member of the firm, he purchased of defendant, then a furniture dealer in Fairmont, $400 worth of furniture for his own personal use. On October 14, 1885, Peabody paid the defendant's bill with the following check: "No. 1258. FAIRMONT, NEB., Oct. 14, 1885. Geneva Exchange Bank pay to T. H. Martin, or order, four hundred dollars. "$400. "JAS. PEABODY & Co. "WRIGHT." Which check was delivered to defendant, endorsed by him, and paid. The plaintiffs allege that the transaction Warren & Co. v. Martin. was without their knowledge or consent, and in fraud of their rights. The partnership was dissolved in August, 1886, all assets, property, and benefits of the firm belonging to the plaintiffs. That both Peabody and the defendant refuse to account for the money paid and received on the check. The defendant appeared, and demurred to the plaintiffs' petition-"that it does not state facts sufficient to constitute a cause of action"-on which judgment was given for the defendant. The plaintiffs assign as errors: I. That the court erred in sustaining the demurrer. II. That the judgment of the court is contrary to law. The plaintiffs' counsel insist that the rule of law applies to this case "that where the creditor of one partner knowingly accepts a partnership engagement in payment of that partner's individual debt, the transaction does not affect the rights of the other partners without they consent to or sanction it, and is fraudulent and void as to them." In support of this rule is cited: 3 Kent, 42, 43, 44. Story on Partnership, 131, 132. This proposition is not disputed. It is a well-settled principle that one partner cannot rightfully apply the funds of his firm to the payment of his own pre-existing debts without the implied authority and assent of the other partners. This rule has been held to extend even to creditors who had no knowledge, at the time, that the fund was partnership property. The authority of each partner to dispose of the partnership funds, strictly and rightfully, extends only to the partnership business, or to that within the scope of its authority, or to the progress of its affairs. This rule, however, is subject to exception. In the case of bona fide purchasers, without notice, for a valuable consideration, the partnership may be bound by the act of one. The power of each, ordinarily, in the absence of fraud on the part of purchasers, or covin on the part of vendors, Warren & Co. v. Martin. has complete disposition of partnership interests, and is considered as the authorized agent of the firm. This power is indispensable to the safety of the public and the successful operations of the partnership. The same power in each exists respecting purchases on joint account, without regard to what fraudulent views the goods were purchased, or to what purposes they were applied by the purchasing partner, if the seller be clear of the imputation of collusion. Where one partner misapplies the funds or securities of the partnership in payment of his own private debts, the creditor dealing with the partner, and knowing the circumstances, will be deemed to act in fraud of the partnership, and the transaction will be treated as a nullity. But while this is the general doctrine in the absence of controlling circumstances, yet the presumption of any fraud or misapplication may be rebutted by the circumstances of the particular case. It may be shown that the other partners have, by fair implication, authorized the application of funds to the very purpose, or that the partner has acquired, with the consent of the firm, an exclusive interest therein, or that, from other circumstances, the transaction was actually bona fide and unexceptionable, although it went to the discharge of the private debt of one partner only. For the application by a single partner of a joint security in discharge of his individual debt by no means necessarily establishes that it is a fraud upon the firm, for it may not only have been expressly authorized by the firm, but it may frequently result from prudential considerations and arrangements referable to their own business interests. Story on Partnership, 133. In the leading case of Dob v. Halsey, 16 Johnson, 33, which runs through the notes of the text-books on this subject, and where this principle was reviewed in the supreme court at Albany, in 1819, it was held that, "Where one partner delivers partnership property to a third person, who receives it, knowing that it is such, in payment of his |