No. 21,213 | Minn. | May 9, 1919
Action for goods sold. There was a verdict for the plaintiff for a less amount than he claimed. He appeals from the order denying his alternative motion for judgment or a new trial.
1. The principal question is whether Mahlman was a member of a copartnership known as Mahlman-Altona & Company or held out by Altona as such so that the defendant is protected in a payment which it made to Mahlman for goods purchased of Mahlman-Altona & Company. The plaintiff claims that he was a sole trader under such name and that Mahlman was not and was not held out as being interested.
In 1915 the plaintiff Altona conducted a small business at Des Moines, Iowa, under the name of the Utility Manufacturing Company. At the time he was manager of a scale company and the business of the utility company was incidental and conducted from the office of the scale company. One Mahlman was his salesman. About May 1, 1916, a business was commenced in the name of Mahlman-Altona & Company. In adopting this name use was made of the name of this Mahlman and of Al-tona. The defendant had purchased from the utility company through Mahlman. It dealt with Mahlman-Altona & Company through Mahl-man.
About the time the name Mahlman-Altona & Company was assumed Altona told a representative of R. G. Dun & Company, who was obtaining for commercial use information as to the membership of partnerships
The defendant dealt with Mahlman-Altona & Company with apparently no actual knowledge as to what the name represented. It is not shown that it received reports from E. G. Dun & Company to the effect that Mahlman was a partner. There is no direct evidence that it relied upon Mahlman as a copartner. It might be inferred by the jury that it did, for he assumed to be a part of the concern and it dealt with him in the ordinary way. Altona’s story is that he made use of Mahlman’s name in combination with his own and started him out to sell goods under the name assumed, but that he, Altona, was in fact the owner, though the name indicated an interest in Mahlman. Such an arrangement was naturally deceptive.
The defendant gave Mahlman a check payable to Mahlman-Altona & Company in payment on its account. Mahlman was identified by an employee of the defendant and cashed it and the proceeds did not reach the company.
We are of the opinion that upon these facts, though they furnish meager proof, a jury might find either that Mahlman was in fact a partner, as the admissions of Altona and some other evidence tended to show, or that he was held out by Altona as a partner under such circumstances as to protect one who purchased in ordinary course and gave a check to Mahlman in the way the defendant did in part payment of the purchase, and who, as the jury might have found at least by inference, relied upon the fact of a copartnership and his apparent connection with it. The jury adopted one theory or the other. It does not appear which one for the verdict was general.
2. The court instructed the jury that if it allowed the $177 payment, which it did, it should assess the plaintiff’s damages at the sum of $204.15, the balance of the amount due Mahlman-Altona & Company for merchandise sold. It is conceded that the verdict should have been for $204.15 with interest from November 2, 1916.
The plaintiff assigns other errors, but they are not of a character which requires specific mention.
There will be no statutory costs.
Affirmed on condition.