Barrett v. Swann

| Me. | May 15, 1840

The opinion of the Court was by

Weston C. J.

The defendants, on the day of the date of the note in question, by a writing under their hands, entered into an association for the manufacture of paper. To three of them were assigned distinct departments of duty. The purchase of stock, and the sale of paper indefinitely was provided for. No stipulation was expressly made to share profit and loss; but this results as incident to the prosecution of their joint business. Why this does not constitute a partnership, even between themselves, it may not be easy to perceive. The case Doak v. Swann & al., 8 Greenl. 170, is exactly in point; and the decision there was made upon the same instrument.

The defendants describe themselves as the owners of the paper-mill, but it appears that there were other owners. They did not become partners, by reason of their being owners of the mill. The case cited, negatives that ground. It was because they entered into a joint association for the manufacture of paper. To this the plaintiff was no party. He was a stranger to the partnership ; and so the jury must be taken to have found, under the direction of the Judge. This does away any ground of distinction, raised in argument, upon the assumption that the plaintiff had a joint interest in the concern.

The partnership was limited to a particular branch of business ; but the note is given in the name of the firm, and it is neither suggested nor proved, that it was a fraud upon them. In such cases the liability of the firm is presumed, unless shown to have been given on some other account. In the Manuf. and Mechanics Bank v. Winship & al. 5 Pick. 11, the defendants were partners in the business of making soap and candles, which was not, any more than this, a general partnership. The reason why the plaintiffs were there held to prove, that the note was given on partnership account was, that this was not indicated by the signature. Had this been the fact, as it was here, it was in that case held, that it would have been prima facie evidence of a partnership transaction.

The note bears the same date with the instrument, signed by all the defendants. They might have made purchases and incurred liabilities, on partnership account, on that day. And in the absence of all opposing testimony, this is fairly to be presumed. It has been urged for the defendant, Harding, that there was a company, using the same partnership name, of which he was not a member. Had this appeared in the exceptions, and been made a point in the case, proof might well have been required, that the note was given on account of the business of his firm. But this is matter of mere suggestion, which cannot be received to affect the case, as certified by the court below.

Exceptions overruled.