Baker v. Seaweard

136 P. 870 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

Much of the argument presented by tbe defendant’s counsel is upon the proposition as to what constitutes a partnership, and for the purposes of this case the propositions therein advanced may be assumed to be the abstract law. It is sufficient for the purposes of this case to say that, taking plaintiff’s testimony to be true, no partnership existed between himself and Mickey; and that, taking the testimony of Mickey and other witnesses to be true, a partnership existed. It was not a case in which the court could instruct as a matter of law that there was or was not a partnership. This was a question of fact for the jury. Where the evidence is undisputed, the question as to whether or not it discloses the existence of a partnership is usually for the court; but that was not this case. There was nothing in the evidence tending to show such a state of facts as would justify the court in holding that the plaintiff might as to the defendant he held as a partner by reason of having held himself out as such.

There was no evidence that plaintiff ever repre-. sented to defendant that he was a partner of Mickey or that any such representation was the moving cause of his parting with the property. In Morback v. Young, 51 Or. 128 (94 Pac. 35), this court stated the rule as follows: “But as there was no partnership, and plaintiff had no contract with Young, it was necessary for her, in order to charge him with liability for the contract of Morback, to show, not only that Young was, by his consent, held out as a partner, but that she knew of such holding out at the time she rendered the services, and that she performed such work on the faith thereof”: See, also, Gettins v. Hennessey, 60 Or. 566 (120 Pac. 369). The matter of partnership is involved only indirectly in this case. In case of a partnership, each partner is the agent of the firm and is entitled to sign the firm name to any paper given for purposes apparently within the scope of the partnership business ; but we have been cited to no case, and we believe none exists, that goes so far as to hold that one partner has a right to sign the individual name of the other partner to checks for the payment of money, and thus make that partner primarily liable for the debt. Paper executed in that way must be by express authority of the person whose name is used, and such authority must be proved by the preponderance of evidence. It is true that if it appears that the purchase was for the benefit of the firm and apparently within the scope of its business, and that the money obtained was for property actually purchased for the firm, the person to whom it was paid would probably be entitled to retain it; and such, in effect, was the charge given by the court. While some-technical objections may be found to the instructions given, we do not think that there was anything in them which misled the jury.

We have carefully examined the evidence and are satisfied that the verdict rendered was such as should have been given; and therefore, in accordance with Article VII, Section 3 of the Constitution, as amended, the judgment will be affirmed. Affirmed.