184 Ky. 679 | Ky. Ct. App. | 1919
■Opinion of the Court by
Affirming.
Claiming that he and the defendant, Robert F. Lewis, were partners in the purchase and sale of tobacco, plaintiff, R. H. Alexander, brought this suit to'settle the partnership and to recover one-half of the profits. The master commissioner, to whom the case was referred to hear proof and determine whether there was a partnership and to settle the partnership if one existed, reported that there was a partnership and that the profits amounted to $2,051.88. On exceptions to this report, the chancellor decided that there was no partnership, and sustained the exceptions and dismissed the petition. Plaintiff appeals.
Plaintiff testified in substance as follows: He was the president and manager of the Tenth Street Tobacco Warehouse Company, in Louisville. He first became acquainted with the defendant in the month of October, 1916. During that month he had some correspondence with the defendant about acting as agent for the Tenth Street Tobacco Warehouse Company, and possibly buy
R. A. Harpring was present on November 1th, when plaintiff called up the defendant. Plaintiff asked defendant if he wanted a partner in the purchase of tobacco. Plaintiff told defendant he would send him up there, and witness went there at the direction of plaintiff. He made three trips up there and assisted defendant in buying several crops. Defendant stated to him that he and Alexander were partners in the purchase of the tobacco. He told defendant that he thought he could get a certain price for the tobacco, at the same time saying: “I will see Mr. Alexander, and if it is satisfactory to him and satisfactory to you, we can sell it.” Defendant said, “Well, go ahead, and if you can, sell it for us.” Thereupon, he returned to Louisville, and the tobacco was sold to the Gorin Brothers. He wrote defendant about it and defendant wrote back that he was well satisfied. After-wards, a crop was sold to Haley & Shelburne. Before the sale was made, defendant mentioned to plaintiff the price that he thought he could get for the tobacco, and plaintiff said that it was agreeable to him to sell it. In all these transactions he represented Mr. Alexander. He wrote several letters to defendant and received several letters in reply. On cross-examination, witness stated that defendant told him that Mr. Alexander was to have half of the profits. At that time he was solicitor for tlie Tenth street warehouse. A. E. Mitchell, the secretary and treasurer of the Tenth Street Tobacco Warehouse Company, testified that the accounts of the Tenth Street Tobacco Warehouse Company were kept in the name of R. F. Lewis & Company. He also exhibited a large number of drafts drawn by defendant in the name of R. F. Lewis & Company.
The only shipment that was not thus sold was to Haley & Shelburne; and this sale was made with the consent of Mr. Alexander. Harpring came to Carter county as a representative of the Tenth Street Tobacco Warehouse. When Alexander called him over the ’phoner he had a hard time understanding him. He finally understood that Alexander wanted to send somebody up to help him out, as he was tied up in the post office. He told Alexander that that plan would suit him very well. Not. at that time, or at any other time, did he state to Alexander that they were partners. Harpring wrote him a letter, in which he said, “I have sold your tobacco.” He never saw the contract between Alexander & Lewis and Gorin Brothers. He never had any agreement with Alexander, by which the latter was to have half the-profits. He told Alexander that if he had to have a partner, he would not engage in the business.
In rebuttal plaintiff denied that defendant had stated to him that he would keep the accounts in the name of R. P. Lewis & Company, so that they would not get mixed up. Harpring went as a representative of tne plaintiff, and not as a representative of the warehouse-company. Harpring testified that upon his arrival at Grayson, defendant stated that he fully understood defendant and plaintiff were partners. At the time lie was representing Alexander, he was being paid by the month
Several letters from defendant to plaintiff and Harp-ring were introduced, and in these letters defendant referred to purchases “I have made,” and in some instances, to purchases “we have made.”
In several of them defendant spoke of the prices at which the tobacco was purchased and asked Harpring to keep him advised as to market prices, as he didn’t want to take any chances.
The circumstances relied on to show a partnership ;are defendant’s statements to Harpring that he understood that he and plaintiff were partners; that the purchases were made, the drafts drawn and the accounts kept in the name of R. F. Lewis & Company; that portions of the tobacco were not shipped to the warehouse company, but were sold to Haley & Shelburne and to Gorin Brothers; that Harpring and plaintiff made the sale to Gorin Brothers, which they would not have done unless plaintiff had been a partner with defendant, and that defendant expressed his satisfaction with the sale upon being apprised of the terms thereof; that in speaking of some of the purchases he. used the pronoun “we;” that plaintiff became responsible to the warehouse company for the money, which he would not have done had there been no partnership.
On the other hand, plaintiff, when he called defendant over the ’phone and asked him if he wanted to go in partnership with plaintiff in the purchase of tobacco, did not state what defendant’s answer was. Plaintiff did not then agree to furnish the money, nothing was said .about the profits and losses, and none of the terms of the .alleged partnership were discussed. A portion of the money used in the purchase of the tobacco was advanced by defendant himself, and the other portion was loaned by the warehouse company and interest charged therefor. In none of the numerous letters introduced was the word “partnership” used. Defendant explained that the Gorin purchase was afterwards sold through the ware
While it may be true that plaintiff believed that he had entered into a partnership with defendant, the evidence is by no means clear that the defendant understood, that this was the case, or that there was ever a meeting of their minds on the question. It is our rule not to disturb the finding of the chancellor upon a question of fact, where the evidence is conflicting, and on a consideration of the whole case the mind is left in such doubt that we cannot say with reasonable certainty that the chancellor erred in his conclusion, and this rule is peculiarly applicable to the facts of this case. Hayes v. Hayes’ Exr., 181 Ky. 589, 205 S. W. 596.
Judgment affirmed.