50 Mo. App. 124 | Mo. Ct. App. | 1892
— This was a suit instituted on a promissory note by the plaintiff bank against the defendants under the firm-name of Outhwaite Bros. The defendant, Joseph, H. Outhwaite, by his answer denied the alleged partnership and, therefore, his liability on the note as one of the makers thereof. There was a trial and judgment for defendant, Joseph H. Outhwaite. The bank is appellant.
The partnership relation was denied by the testimony of defendant. There was no evidence tending to show that defendant had by word or act of any kind held himself out as a partner of Ms brother William. The cashier of the bank testified as to statements made by William F. Outhwaite at the time he made the note sued on to the effect that Joseph Outhwaite sustained the relation of partner to him.
The question thus presented by the record is whether Joseph Outhwaite was a partner with William F. Outhwaite at the time of the execution of the note sued on, and, if so, does the contract show that relation; for, if it does not, then there is no evidence, as we shall presently see, of such partnership. The rule is that whether persons are partners as to each other may be determined by their intention as the latter is expressed by the words of their contract or gathered from the acts and circumstances attending such contract. Priest v. Chouteau, 83 Mo. 398. Construing the contract in the light of Kellogg Newspaper Co. v. Farrell, 88 Mo. 594; Musser v. Brink, 68 Mo. 242; Donnell v. Harshe, 67 Mo. 173; Phillips v. Samuel, 76 Mo. 658; Ashby v. Shaw, 82 Mo. 76, and McDonald v. Matney, 82 Mo. 358, we must conclude that the same does not evidence a partnership inter sese.
In Daniel v. Stone, 30 Me. 384, the rule is declared to be that "there must be such a community of interest as empowers each party to make contracts, incur liabilities, manage the whole business and dispose of the whole property of the partnership for its purposes in the same manner and with the same power as all of the
It is clear that William had no power to dispose of the property on the farm except as that of Joseph. He was authorized to sell and purchase property for the use of the farm, but only as an agent and employe of the latter. If Joseph Outhwaite had died during the five-years, the title to the property would have passed to his. representatives and not to William Outhwaite as a surviving partner, because the contract provided, as has; been already stated, that the title of the property was; to remain in the former. William Outhwaite was to have a living out of the property, and that which with it his labor produced on the farm. If there was a loss of the property it was that of Joseph Outhwaite. If, however, the business did not yield a profit from any cause, and he lost all or a part of his labor, so that it could be said that he was a participator in the losses of the business as well as in its profits, this would not necessarily make him a partner; for it has been ruled in this state that “a mere participation in profits and losses
The admissions of William P. Outhwaite as to the partnership proved nothing. Such admissions could only have been admissible upon the theory of an implied agency; that is, that being a member of the partnership of Outhwaite Bros., he was authorized as an implied agent to bind his principal, the partnership, by his admissions. But until his agency was established, such admissions were not evidence. Campbell v. Dent, 54 Mo. 325. And, besides this, the declarations of William Outhwaite as to his agency were not evidence of that fact. An agent cannot establish his agency by his own declarations. White v. Middlemarch, 42 Mo. App. 363; Dill v. Railroad, 37 Mo. App. 454.
So that, in any view of the case which we are able to take we cannot discover any evidence of a partnership between the Outhwaite brothers at the time William, one of them, signed the note sued on.
In this view of the case it becomes unnecessary to examine the instructions. The judgment being for the right party, it will be affirmed.