46 Fla. 433 | Fla. | 1903
This cause was duly considered by Division B of this court, and there being a difference of opinion among its members as to its proper disposition, it was referred to the court en banc for decision.
In July, 1899, defendant in error began in the Circuit Court of Manatee county an action of assumpsit against the plaintiffs in error. The declaration alleged that the defendants under the firm name of Griffin & Barwick were co-partners in the manufacture of pine lumber, and that on or about September 1, 1898, they were indebted to plaintiff in the sum of $242 for forty and one-third thousand feet of pine logs bargained, sold and delivered to them by plaintiff at their saw mill at an agreed value of six dollars per thousand feet. The declaration also contained common counts for goods sold and delivered, work doné and materials furnished, and upon an account stated. The defendant Barwick filed his separate plea to the effect that the supposed promises in the declaration mentioned, if any such were made, were each of them made by defendant B. H. Griffin alone, and not by said defendant Barwick jointly with the said Griffin. No pleas appear to have been filed on behalf of Griffin. Issue was joined upon Barwick’s plea, and at the trial a verdict was found in favor of plaintiff. Thereupon judgment was entered in favor of plaintiff against both defendants, from which this writ of error was taken.
The plea, though somewhat inartificial, was treated by the parties and the court below as putting in issue the question of the existence of a partnership relation between Griffin and Barwick at the time the debt was contracted,
Alderman, the plaintiff, testified that he with Griffin and one Bailey were present at Barwick’s on one occasion when Barwick executed a mortgage to one Saffold to secure a loan of money; that the mortgage covered Barwick’s mill then in Sumter county, and the loan was obtained to enable Griffin to move the mill to Manatee county; that at the time of signing this mortgage Barwick told Bailey to draw a partnership contract between himself and Griffin, the terms of which were to be that Barwick should furnish the mill and machinery and Griffin should furnish the labor and run the mill, and the parties were to divide the net profits; that witness thought from this that the parties were partners arid that Barwick would be responsible for logs furnished the mill; that on the way home with Griffin he made the contract with him to furnish logs upon which this suit was brought; that witness would not have furnished the logs if he had not thought from the instructions given by Bar-wick to Bailey that Barwick was a partner; that Griffin had previously informed him that he and Barwick would run the mill as partners if he could get the money to move the mill to Manatee county. Witness further testified: “Mr. Barwick did' not tell me that he and Mr. Griffin were not partners, and I do not remember hearing him state to Mr. Bailey that he and his mill and machinery were not to be in any way responsible for the-costs and expenses in running the mill.”
U. I. McMullen testified on behalf of plaintiff that he was working at the mill for Griffin about July or August, 1897; that Barwick was there one day and witness heard him say to some men “this machinery is responsible for the wages of any man who may work here. Mr. Griffin and I are partners.”
H. H. Saffold testified on behalf of plaintiff that one •Bailey asked him to stop at Barwick’s one day and leave a note relative to some business between Barwick and Griffin;
H. P. Bailey testified on behalf of plaintiff that at the request of Alderman ánd Griffin he drew the mortgage from Barwick to Saffold, and at the time it was executed Barwick, in the presence of Alderman and Griffin, told witness to draw a partnership contract between himself and Griffin, the terms of which were to be that Barwick was to furnish the mill and machinery and Griffin to furnish the labor and run the mill, the net profits to be divided between them; that witness did not have materials at hand and told the parties he would make a note of what they wanted and go to his office and draw the contract; that he did go to his office and draw the contract in accordance with the instructions so given him; that he was confident Barwick told him to draw a partnership contract, but did not tell him to stipulate therein that he and hi's machinery were not to be responsible for any debts contracted in running the mill; that Barwick, according to witness’ recollection, made such a statement to witness in private sometime afterwards, but did not instruct him to embody such agreement in the contract.
On cross-examination witness was shown a written document which he testified was the identical instrument drawn by him under Barwick’s instructions given in Alderman’s presence, and after reading it he admitted that he was mistaken in supposing the contract drawn by him under Barwick’s instructions did not contain a stipulation exempting Barwick from liability for debts incurred in running the mill. The written contract referred to was read to the jury by the witness, as follows: “This contract by and between I. E. Barwick of Memphis, Manatee county, Florida, party of the first part, and B. H. Griffin of Manatee county, Florida, party of the second part, witnesseth: that the” said
Signed & sealed in presence of us (Seal.)
on this day of June, A. D. 1897. (Seal.)”
Witness further stated that he did not know why the paper was never signed by the parties.
The defendant Barwick testified that after negotiations between himself and Griffin looking to a sale of his mill in Sumter county to the latter had failed, Griffin proposed to rent it, but could not procure the money to move it. After discussing several propositions made by Griffin it was agreed that witness should mortgage the mill for $124.80, the money necessary to move it, and Griffin should pay the amount of the mortgage from the first earnings of the mill, and' have the use of the mill four months for moving it ; that the mortgage was executed in June; 1897, and Griffin superintended the removal of the mill; that the mill was put
J. F. Whidden testified on behalf of defendant that while he was working at the mill one day he saw a notice lying around among some plunder in a room which stated that the mill belonged to Barwick; that he asked Griffin, what it meant, and Griffin replied that it did not amount to anything; that some time after Griffin asked witness to see
The foregoing statement of the testimony embraces the substance of all bearing upon the issues presented by the plea.
After plaintiff had rested his case defendant moved to strike the testimony of McMullen and Saffold upon the grounds that same was irrelevant and immaterial, and because it was not shown that the admissions of Barwick to the effect that he was a partner with Griffin, testified to by these witnesses, were ever communicated to Alderman, the plaintiff. The motion was refused and this ruling constitutes the basis of the first and second assignments ■ of error.
It is argued that the admissions of Barwick that he was a partner with Griffin are merely expressions of opinion, and that even if such admissions are not mere opinions they do not tend to establish a partnership in fact, but are merely evidence of a “holding out” as a partner, which, to be available as creating an estoppel to deny the partnership, must have been known to the plaintiff at the time he extended credit. The admissions testified to by these witnesses are not necessarity mere matters of opinion, but constitute a competent evidence tending to show a partnership in fact. Like other admissions which have not been acted upon by another to his detriment, they are not conclusive upon the party making them that he was a partner or that he must be held to the liability of such, but they are competent evidence tending to prove the partnership in fact, to be given such weight as the jury under all the circumstances think proper to give them. Upon the issue of partnership or no partnership, the admissions of a' party sought to be charged as a partner to the effect that he was a member of the alleged partnership; whether made direct to the party seeking to charge him or to third persons, aré admissible-as against-
The third assignment of error is based upon an exception taken to the ruling denying the defendant’s motion to strike the testimony of Alderman. The motion was made after plaintiff had rested his case and was based upon the ground that the testimony was irrelevant and immaterial. Alderman stated that he was present when Barwick, in Griffin’s presence, instructed Bailey to draw a partnership contract between himself and Griffin to the effect that he, Barwick, was to furnish the mill and Griffin was to furnish the labor and run the mill, and the net profits to be divided between them. There was other evidence tending to show that the mill was removed to Manatee county, and there put up and operated by Griffin and that Barwick admitted to other persons that he was Griffin’s partner in the mill business. ' The testimony of Alderman, especialty in connection with the other evidence, tended to prove the fact of partnership between Barwick and Griffin, and was, therefore, admissible.
The fourth and last assignment of error is based upon an exception taken to the ruling denying the motion for a new trial. «This motion questions the sufficiency of the evidence to support the verdict. Conceding that the testimony is sufficient to support the finding that a partnership existed between Barwick and Griffin, it seems very clear that one of the terms of the articles of copartnership was that Griffin was at his own expense to furnish the labor and operate the mill and that Barwick was not to be liable or responsible for any of such expenses. It is not shown that Barwick ever assumed liability for logs furnished under the contract made with Alderman by Griffin, and if he can be