94 P. 736 | Utah | 1908
Lead Opinion
This action was brought to recover the sum of $212 alleged to he due plaintiff from the defendants for labor performed on certain mining claims operated by the defendants. It is alleged in the complaint that the defendants entered into a contract in writing whereby they associated themselves together as copartners for the purpose of developing, improving and operating certain mining claims, naming them, known as the “Wakefield Group' of Mines,” situate near Tuscarora, Nevada, and for the purpose of extracting ore therefrom; that
Some of the • defendants reside at Logan, Utah, and the others in southern Idaho. The defendant Brossard, who had examined the group of mines, spoke to the other defendants about them. Thereupon Brossard, in October or November, went tó Tusearora, and there negotiated with L. Fannof, the owner of the group, for a lease, upon substantially the following terms: That Fanhof was to deliver possession of the property to Brossard, who was to work and develop the claims in such manner as Brossard deemed proper; that Brossard was permitted to sell all the ores obtained from the mines while working them under the lease, and that the money received therefor should be disposed of as hereinafter stated; that Bros-sard should employ at least six men every twenty-four hours, and that three men should be kept at work on said mines each day, and three men each night; that the property should be worked in a workmanlike manner , etc., and that Fannof should not be responsible for the payment of the labor employed or material furnished, etc.; that all moneys derived from the sale of ores should be deposited with the First National Bank at Logan, and should be subject to the check or draft of Bros-sard, and that he should be permitted to use so much thereof as was necessary to pay all expenses, etc., and that all moneys derived from the sale of ores in excess of the expenses should be equally divided between Brossard and Fannof; that if the moneys derived from the sale of ores were not sufficient to pay
“This agreement made and entered into at Logan City, Utah, between A. Brossard, the first party, and the other defendants above named, second parties, witnesseth: That whereas the first party has leased from L. Fannof of Tusear-ora, Nevada, mining claims situated in the said Tuscarora mining district, state of Nevada [naming them] ; and whereas it is deemed advisable and- agreed by the parties hereto that the sum of $5,000 shall be furnished for the development of the said mining claims and the carrying out of the said contract when completed by the first party therein a,nd the said L. Fannof for the development of the said mining claims and
At about the time of the making of the foregoing contract, and before the lease between Brossard and Fannof was actually signed, R. A. Caldwell, West, Blair, Hanson, and Bros-sard contributed $3,000. Brossard then departed for Nevada, and thereafter the lease was signed and executed on the 13th day of December, 1902. Brossard thereupon took pos^ session of the properties and commenced work on the 15th day of December, 1902, and with the moneys contributed and paid over to him he employed men, purchased supplies, etc., and commenced active operations. The work consisted in sinking shafts, running tunnels, and making cross-cuts in search of ores. In March, 1903, $2,000 more was contributed by the same parties and A. F. Caldwell. In May $2,500, and in June, 1903, an additional sum of $2,500, were contributed by the same parties and some others who had come into the association, making, in all, a total contribution of about $10,000. The record does not disclose the amount contributed by each, nor do we regard such fact material, in view of the issues presented by the pleadings and the questions involved in the case. The operation of the mines was continued until some time in September, 1903. All of the moneys contributed were used in paying men, in buying supplies, and in working and developing the mines. Brossard had charge of the work, and directed and controlled the supervision of it, and employed the men, and purchased the supplies. The record further shows
At the conclusion of the evidence the court charged the jury that no verdict could be rendered against the defendants A. P. and O. A. Caldwell because they had not been served with process and directed them to return a verdict in favor of the defendant Hanson because her name had been signed to the agreement without authority, and in favor of defendant Blair because he had sold and parted with his interest prior to the employment of the plaintiff and the rendition of his services. The court directed a verdict in favor of plaintiff and against the defendant, Brossard. As to the liability of the defendants West and R. A. Caldwell, the court submitted the case to the jury on instructions that, if they found the defendants were pai'tners, to render a verdict for the plaintiff against those two defendants also; otherwise to find in their favor. The jury found in favor of defendants West and B. A. Caldwell; hence this appeal by plaintiff from that part of the. judgment.
Among other instructions the court charged the jury as follows:
“(5) Partnership is thus sometimes defined as the relation existing between two or more persons who have contracted together to share as co-owners the profits of a business carried on by all or any of them on behalf of all of them. Tou are*405 further instructed that, where the business so engaged in is the worldng of a mine or of a mining prospect to test its value under an option to purchase it, a mining partnership exists, and that such partnership may be created by the acts of the parties without an express contract formally designating themselves as partners. Two things are necessary to create a mining partnership: (a) An agreement between the parties to so associate themselves together to work the property; and (b) actually undertaking the work of mining operations thereon. It is not necessary under such circumstances that the parties should be the owners of the legal title to the property to constitute them mining partners.
“(6) If you find by a preponderance of the evidence that the defendants, or any of them, so associated themselves together for the purpose of causing mining operations upon the property described in the complaint, and co-operated for that purpose, the profits of the business, if any, to inure to all as co-owners and to be shared accordingly, and by authority of those so associated, actual working of the property was in fact carried on, then a mining copartnership was created between the defendants so associating and co-operating, and they would be liable for the debts incurred in carrying on such mining operations.”
“(9) You are instructed that a member of a mining partnership has full power to make such contracts as are usual -and and necessary in the ordinary course of working a mine, such as to purchase supplies and materials for working the mine, and to employ the necessary help in carrying on its, operations, and the right to' incur debts for necessary supplies furnished to the mine, and for the payment of the laborers and other employees necessarily engaged therein, and all the members of the mining partnership1 are bound by his acts as to all such matters.
“(10) You are instructed that a superintendent, foreman, or managing agent of a mining partnership', when duly authorized by the partnership, or one of its members, has authority to bind them by his acts in carrying on the working of the mine, in the employment of laborers and other necessary em*406 ployees, and in purchasing supplies and materials for actual use in the working of a mine. You are further instructed that when a mining partnership in fact exists it is not necessary that a creditor furnishing supplies or materials for the working of the mine, or a laborer or other employee working therein, should know the names of all the partners; but when such a partnership is shown to exist by competent evidence all the partners are bound for the claims of the rightful creditors of the partnership, whether such creditors know they are partners or not.”
“(12) You are instructed that when a mining partnership has been proven to exist any special limitation upon the powers of the partners, which they attempt to make by agreement among themselves, does not affect or restrict the power of each partner to bind the partnership in the usual course of business, except as to persons who know of the limitation, and the burden of showing knowledge of such alleged limitation is upon the parties claiming it.”
The jury were further instructed that in ascertaining whether the relation of the defendants constituted a partnership they should consider all the facts and circumstances, and if, from a consideration thereof, they found “that there was no intent on the part of said defendants to enter into a co-partnership relation, and that such relation did not exist between them, or any of them, and the defendant Bossard, then the court charges you that your verdict must be in favor of the defendants Jacob West and B. A. Caldwell.” The court further instructed the jury that the written agreement between Bros-sard and the other defendants did not in and of itself constitute a partnership; that the fact that the defendants, contributed to the expenses connected with operating the group of mines was not in and of itself proof of partnership; that the fact that the defendants, under certain circumstances, were to share in the profits, if any, to be derived from the operation of the mines, was not in and of itself sufficient to prove partnership; and that the payment of money by the other defendants to the defendant Brossard to be used in the development
Various assignments of errors are made, among them that tbe verdict is contrary to tbe evidence, and is against tbe law, and that the court erred in charging the jury that tbe written contract of tbe defendants did not constitute tbe relation of partnership; in charging that a verdict must be rendered in favor of the defendants West and ft. A. Caldwell, unless tbe (relation of partnership was found to exist; in charging that the contributions made by the defendants to defray the expenses in operating and working the group of mines, and the payment of money by them for the development and carrying on the workings and operations of the property, and the agreement to share in the profits, if any, by the defendants, resulting from such operations, did not constitute a copartnership'; and in admitting certain testimony of the defendants that they never received any money or profits, or a conveyance, or other thing of value, from Brossai’d in pursuance of their contract, and that they gave Brossard no directions as to the employment of men or the conduct of the work.
The principal questions involved have, to' a large extent, been discussed together by counsel in their briefs and in the oral argument. It is not necessary for us to review these questions separately. We are of the opinion that the court erred in charging the jury that the written contract of the defendants did not constitute the relation of partnership. It is not essential to inquire into the requisites of a general or trading partnership beyond the principles of law which are in common with such a partnership and a mining partnership^. As to the general principles involved, and particularly applicable to the case, we find no better statement of the rule than that of Mr. Justice Gray in the case of Meehan v. Valentine, 145 U. S. 611, 12 Sup. Ct. 972, 36 L. Ed. 835, as follows:
“The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits.”
After reviewing the authorities it was further observed by him:
*408 “In the -present state of the law upo-n this subject it may perhaps, be doubted whether any more precise general rule can be laid down than as indicated at the beginning of this opinion, that those persons áre partners who contribute either property or money to carry on a joint business for their common benefit, and who own and share the profits thereof in certain proportions. If they do this, the incidents or consequences follow that the acts of one in conducting the partnership business are the acts of all; that each is agent for the firm and for the' other partners; that each receives part of the profits as profits, and takes part of the fund to which the creditors of the partnership have a right to look for the payment of their debts; that all are liable as partners upon contracts made by any of them with third persons within the scope of the partnership business; and that even an express stipulation between them that one shall not be so liable, though good between themselves, is ineffectual as against third persons. And participating in profits is presumptive, but not conclusive, evidence of partnership.”
It is sometimes said that an obligation, to share losses is. an essential element to the existence of a partnership. While an obligation to share losses is. not directly expressed in the agreement, still it has been quite generally held that an agreement to share profits, nothing being said about losses, amounts prima facie to an agreement to share losses also. (1 Lindl. on Partn. [Ewell Ed.], 30. The contract executed by the defendants recites: “That whereas the first party [Brossard] has leased from L. Eannof mining claims [naming them] ; and whereas it is deemed advisable and agreed by the parties hereto that the sum of $5,000 shall be furnished for the development of said mining claims and the carrying out of the said contract when completed by the first party therein, and the said L. Eannof for the development of the said mining claims, and for earning and securing the option in said contract set forth: Now, therefore, it is hereby agreed by the parties hereto, etc.” It is thus seen that the lease between Brossard and Eannof was not only the inducement for the making of the contract between the defendants, hut was the very' subject-matter of their agreement, and, by sufficient reference, was in effect made a part thereof. To therefore arrive at a correct meaning of the defendants’ contract, and to properly understand it, it must be read in connection with the lease. • The object of entering into, their contract
When the trial court permitted the jury to determine from all the evidence and circumstances whether the defendants had intended to assume the relation of partnership towards each other, it also committed error. True it is sometimes said that to constitute a partnership the parties must have intended to create such relation.
“But,” as was said by the court in the case of Fleming v. hay, 109 Bed. 952, 48 C. O. A. 748, “by this it is meant to say they must have intended to make such stipulations as in law constitute a partnership, and not that they intended the conclusion without regard to the conditions upon which it results as matter of law.” And, as said by Mr. Liridley in his work on partnership', “if they have' in fact stipulated for all the rights of partners, an agreement that they shall not be partners is a useless protest against the consequences of their real agreement.” (1 Lindl. Partn. [5th Ed.] 11.)
Counsel for respondenthas strongly urged that “there was no common partnershipnor joint proprietorship in the business;” that Brossard alone had an interest in the lease; and that the respondents had no present estate or interest in the lease or in the claims, and that they had only the promise of Brossard to do something in the future. We need but to refer back to the statement of the rule as made by Mr. Justice Gray as to the requisites of a partnership to point out the fallacy of counsel’s position. To be a partner one must of course have an interest in carrying on the business or adventure, and must have a common ownership of, or a community of interest in, the profits of the business. While a community of interest in the profits is not alone conclusive of the existence of a partnership, it nevertheless is of the very essence of the contract of partnership, for without it a partnership cannot exist in contemplation of law. Furthermore each party here had, not only an interest in carrying on the business or adventure, but also a common ownership in the business itself. Though the lease was in the name of Brossard alone, nevertheless the contract of the defendants, as between themselves, had the effect of an equitable assignment of the lease, and gave each of the parties to the contract
“A mining partnership arises when two or more Co-owners of a mining claim actually engage in working the same, and share, according to the interest of each, in the profit and loss, although there is no express agreement between them to become partners, or to share the profits and losses. Such á partnership is not restricted, however, solely to cases where the mine is owned by the parties working it, if they have an interest in working it or in carrying on mining operations. It can he formed either to prospect for and locate mines, or to work mines belonging to other persons, or to any or all of the individual members.”
In speaking of mining partnerships., Mr. Lindl’ey, in his work on Mines (volume 2, section 798), says:
“Such a partnership may exist as well where the parties have an interest in the working'of the mine in carrying on mining operations as where they own the mine itself.”
In 2 Snyder on Mines, section 501 et seq.., is found a full discussion of what constitutes a mining partnership., the dis
“It is evident that a mining partnership may exist as well where the parties have an interest merely in the working of a mine, or in carrying on mining operations, as where they own the mine itself.”
To the same effect are the following cases: Meagher v. Reed, 14 Colo. 335, 24 Pac. 681, 9 L. R. A. 455; Hartney v. Gosling, 10 Wyo. 346, 68 Pac. 1118, 98 Am. St. Rep. 1005; Ashenfelter v. Williams, 7 Colo. App. 332, 43 Pac. 664; Settembre v. Putnam, 30 Cal. 490; Dunlap v. Pattison, 4 Idaho 473, 42 Pac. 504, 95 Am. St. Rep. 140; Southmayd v. Southmayd, 4 Mont. 100, 5 Pac. 318; Haskins v. Curran, 4 Idaho 573, 43 Pac. 559. The facts in the case of Meagher v. Reed, supra, are very similar to the facts of the case in hand. There Meagher obtained a lease from the owners of the claims in his own name. The property was worked under the lease, and developed by himself and his associates, who had no interest whatever in the properties, except as they had an interest in the lease through an agreement with Meagher, and because thereof were interested in the working of the mine and the profits to be derived therefrom, and were to acquire undivided interests therein in case of successful development and operations. True Meagher had agreed to assign an undivided interest to his associates in and to the lease when obtained from the owners, while here there was no such express agreement on the part of Prossard, but where nevertheless his contract with his associates operated as an equitable assignment of an interest in the lease and gave them an equitable interest therein. At any rate, by Brossard in his contract with his associates agreeing to convey to them specified undivided interests in and to the mining property itself acquired in pursuance of the lease, and to pay to them pro rata shares of the proceeds of ores over and above expenses, gave them an interest
■ Again, referring to the contract of defendants, it seems quite clear that they associated themselves together to work and develop the group of mines in question for their common benefit; that each had an interest in and to the lease, and in working and developing the properties, and in carrying on the mining operations; and that each had a community interest in whatever profits that were to be derived from such operations. The agreement, under all the authorities, contains every requisite of a mining partnership. Quite true a distinction is made, and is well recognized by the cases and the textwriters, between such a partnership and an ordinary trading or general partnership. The principal distinctions are that a member of a mining partnership may assign his interest without the consent of his copartners, and the act does not work a dissolution of the partnership; that the person to whom the interest is assigned becomes a member of the company, and it is not necessary that the other parties consent thereto. Neither does the death of a member dissolve the partnership. Another distinction is that a member of a mining partnership has not the power to bind his associates by engagements with third persons to the extent that a member of a trading or commercial firm may do. For instance, the law does not imply any authority to a member of a mining partnership to borrow money, to employ counsel, to execute a
“In this ease the articles purchased of the plaintiff were essential to the carrying on of the business and the accomplishment of the purpose of defendants in working the mine, and the debt being created in the necessary and usual course of the business, and within the scope of the partnership .adventure, the individual member who made the purchase had lawful authority to contract the debt, and to bind hi3 copartners thereby.”
And it must here be held, as was held in the case of Lyman v. Schwartz, 13 Colo. App. 318, 57 Pac. 735, that one member of a mining partnership' has authority to employ laborers to
It is also said by counsel that Brossard had the active management of the properties; that he employed the labor and purchased the material, directed and controlled all the work and operations at the mines; and that the respondents had not given him any authority or direction with regard to such matters. From this it is argued that the respondents were not principals in the business; that the relation of agency did not exist between them andi Brossard, and therefore no partnership relation existed between them. As pointed out in the cases of Pooley v. Driver, 5 Ch. Div. 458, and Meehan v. Valentine, supra, the reference to agency as a test of partnership, as made in some of the cases, “was unfortunate, inasmuch as agency results from partnership, rather than partnership from agency.” Says Mr. Justice Gray: “Such a test seems to give a synonym rather than a definition; another name for the conclusion, rather than a statement of the premises from which the conclusion is to be drawn.” The proving of agency, as must be readily conceded, does not prove a partnership'. But from the proof of partnership agency at once results. It is a sort of agency of one person acting on behalf of the firm.
“He does not act as agent, in the ordinary sense of t'he word, for the others, so as to hind the others. He acts on behalf of the firm of which they are members; and as he binds the firm, and acts on the part of the firm, he is properly treated as the agent of the firm.” (Pooley v. Driver, supra.)
Nor is the fact that Brossard had charge of the work and employed the labor and purchased the material significant or controlling under the circumstances of the case in determining whether the mining operations carried on were his individual business or the joint business of himself and associates, for such delegation of power to a general manager or common agent is not an infrequent incident of the business of partnership. That the working of the mine was not his individual business, and the carrying on of the mining operations was not alone for his benefit but for the common benefit of all the parties to the contract, is conclusively shown by all the evidence.
Bor the foregoing reasons, the judgment of the court below is reversed, and the cause remanded for a new trial, costs to appellant.
Dissenting Opinion
(dissenting).
Plaintiff' brought this' action to recover from defendants the sum of $212 alleged to be due for labor performed on certain mining claims situated near Tuscarora, Nevada, known as the “Wakefield Group.” It is alleged in the complaint that the defendants, on or about March 11, 1903, at Logan City, Utah, entered into a contract in writing whereby they associated themselves together as mining partners for the purpose of developing and opei*ating the group, of mining claims mentioned, and that the defendants thereupon jointly entered upon the work of developing and operating said mining property under said contract of partnership; that plaintiff was employed by the defendants as an engineer to work upon said mining claims; and that he performed work thereon between August 1, 1903, and September 23, 1903, and that there is due him
It appears from the record that in October or November, 1902, at Tuscarora, one L. Fannof, who was the owner of said group of claims, agreed to lease them to A. Brossard, one of the defendants in this action. A draft of the lease was drawn up at that time, but not signed by the parties until December 13, 1902. The lease, which was for an indefinite period, provided, among other things, that Brossard should employ and keep at work six men a specified number of hours each day developing the property. It was further provided that the money, if any, derived from the sale of ore extracted from the mines during the life of the lease, should be deposited with the First National Bank at Logan, Utah, subject to the draft or check of Brossard as manager of the “Wakefield Aline.” It was also stipulated that this money should first be expended by Brossard in defraying the expenses of the mine, and the balance, if any, should be allowed to remain and accumulate in said bank, and that when the money thus accumulated, after paying all expenses, amounted to $20,000, it should be equally, divided between A. Brossard and L. Fannof. It was further agreed that Fannof would then convey to Brossard, by a good and sufficient deed, an undivided one-half interest in the group of mines in question. It was also agreed that Brossard should have an option to purchase said one-half interest in the property at any time during the life of the lease by paying therefor “the sum of $10,000 of his- own individual funds, . . . and that in such event any moneys that may have accumulated in said bank over and above the expenditures . . . shall be equally divided between the parties.” It was further provided in the lease that Brossard should neither sublet nor assign the lease without first obtaining Fannof’s consent in writing. It was also provided that when steam power was used to operate the machinery of the mine Fannof should be ‘ ’'employed as first engineer at the current wages paid for such work in Tuscarora mining district. ” (The record shows that steam power was used, and that Fannof was employed as an engineer.) It was further provided in the lease that if
This leasee, which was written out, but, as stated, not signed, was taken by Brossard to Logan City, Utah, where most of the other defendants resided, and there presented to them with the proposition from Brossard that, if each of them would contribute a certain sum of money to be used by Bros-sard in the development of the mining claims covered by his lease, he, in return for the money so contributed, would, at some future, time convey to each of the parties contributing an interest in the property, provided he should, with the funds thus furnished him, succeed in making of the adventure a paying concern. This proposition was accepted by the other defendants, who immediately paid to Brossard $5,000. Brossard soon thereafter returned to Tuscarora, and he and Fannof signed the lease, a draft of which he had, as stated, shown to the other defendants. Brossard immediately thereafter took possession of the leased property, and, with the money he had received from his co-defendants, put up machinery, employed men, and began active operations thereon. The work consisted of sinking shafts, running tunnels, and making crosscuts in search for ore. About March 1, 1903, thé funds which Bros-sard had received under the contract became exhausted, and he called upon the parties who had paid him the $5,000 for more money, and they again paid him $2,000. On March 11, 1903, an agreement containing the terms and conditions upon which the money was paid Brossard was drawn up and signed by him and the other defendants. The agreement so far as material here, is set out in the prevailing opinion in this case. Contributions other than those mentioned in the agreement were made by the parties, the last of which was made about June 30, 1903. Brossard called on the parties for more money in July, 1903, but they failed to make any further payments. The entire amount contributed under the agreement was about $10,000. Brossard kept men at work on the prop
The action was tried to a jury, who returned a verdict in favor of plaintiff and against A. Brossard, and against plaintiff and in favor of the defendants Jacob' West and B. A. Caldwell, “no cause of action.” The court directed a verdict in favor of Mattie B. Hanson and J. M. Blair. The defendants A. B. Caldwell and O. A. Caldwell were not served with summons, and.did not appear in the action. This appeal is prosecuted against the defendants, Jacob West and K. A. Caldwell only.
Appellant bases his right to recover from respondents on the ground that they were copartners with defendant Brossard in the said mining operations, and that the services in question were rendered for the copartnership. The court instructed the jury that the written agreement between A. Brossard and the other defendants did not create the relationship of copartners» between them. Appellant assigns the giving of this instruction as error. It might be well to observe that respondents concede that the services referred to were rendered, and that the sum sued for is justly due appellant. Bespondents, however, contend that Brossard alone was liable for the debt. The 'only question, therefore, presented by this appeal is, did the relationship of copartners exist between Brossard and the respondents at the time the labor in question was performed ? A partnership is defined to be
“A business relation between two or more persons arising out of a contract by which they agree to unite their property, credit, skill, or influence in some business so that they may have a community of interest in such business, and usually divide the profits and losses between themselves in fixed proportions.” (2 Page on Contracts, 937.)
In the case of Beecher v. Bush, 45 Mich. 188, 7 N. W. 785, 40 Am. Rep. 465, Judge Cooley, in the course of an able and elaborate opinion, says that a partnership is “a community of interests in some lawful commerce or business, for the conduct
Some of the elements necessary to a. partnership are wanting in the agreement entered into' between Brossard and his oodefendants. . There was no evidence introduced that tended to show that it was the intention of the parties to the agreement to form a partnership', nor do I think such intention can be reasonably inferred from the terms of the contract, especially when read and construed in connection with the lease: The agreement when thus read shows conclusively that neither respondents nor any of Brossard’s other codefendants acquired' any interest whatever in the lease. The consideration, and the only consideration received by the parties for the money paid to Brossard under the contract, was his promise that he would, in case the venture proved a financial success, refund the money, deed to each of the parties a specified interest in the property, and pay to each a certain proportion of the fund provided for by the terms of his lease. Brossard was in no way subject to the control or dictation of respondents and the other defendants respecting the employment of laborers at the mine and the expenditure of the money in purchasing machinery and supplies necessary to the successful prosecution of the work under the lease. And neither respondents nor any of Brossard’s other codefendants had any authority to contract for or to purchase supplies to be used in operating the mines and to pay for the same by drawing against the funds which they had paid to Brossard. Their contract gave them no right whatever to direct how the money should be expended, or in what particular way the work should be prosecuted. They had no right to even go upon the property and enter the underground workings thereof without Brossard’s consent. Nor could they compel him to suspend operations when the money paid him was exhausted. And they could not have prevented him from incurring the indebtedness for which they are sought to be held liable in this action. In fact, they had no more legal right under the contract to direct how the money should be expended, or how the work under the lease should be performed or prosecuted, than if they were not parties to the
The obligations created by the agreement were not joint, as appellant seems to contend, but several; that is, the amount that each of Brossard’s codefendants was to contribute, and the interest each party was to receive in the property, was fixed by the agreement. Neither of Brossard’s codefendants acquired any right or interest in the .contribution of any other defendant, nor in any of the benefits to be derived therefrom, as stated by counsel for respondents in their brief, “the relationship among the defendants was as separate and several in character as if each of the defendants, with the exception of, Bros-sard, had entered into a separate and distinct contract with him.” When one of the parties to the agreement paid the amount he had covenanted to pay, the contract on his part was fully performed, and neither Brossard nor any of the other defendants had any further claim against him. And on the other hand, when the money advanced by the parties was all spent, and they failed to further contribute, Brossard’s obligations to them under the agreement likewise terminated, and the contract gave him no authority to continue the work on the credit of his codefendants. That such was the legal effect of the agreement is plain, because, as stated, Brossard’s right to the possession of the property and to carry on the development woi'k was derived from his lease from Bannof, and in no way depended upon his agreement with respondents. This lease he could not assign, neither could he sublet the property covered by it without the written consent of Bannof. By the terms of the lease Brossard was bound to keep a certain number of men at ■work on the property during the life of the lease, and when steam power was used to run the machinery of the mines Ban-
The doctrine is fundamental that in a partnership each partner is an agent of his copartners in all matters pertaining to the affairs of the partnership, and has implied authority to bind the firm in all matters within the scope of the business in which it was engaged. This principle is well illustrated by Mr. Parsons in his work on Partnership, section 83, in the following language:
“The principle which lies at the foundation of the partners’ liability is that every partner has full and absolute authority to bind all the partners by his acts or contracts, in relation to the business of the firm, in the same manner and to the same extent as if he held full, powers of attorney from all the members. No principle is better established' than this. It rests, not only on universal authority, but on obvious reason and necessity; because, if the rule were otherwise, a very large proportion of the advantages and facilities for which partnerships are formed would be lost.”
Tested by this doctrine, wbicb is undoubtedly founded upon correct principles, it is plain that the agreement entered into by Brossard and the other defendants did not create the relationship of partners between them. (Beecher v. Bush, supra; Loomis v. Marshall, 12 Conn. 69, 30 Am. Dec. 596.)
By an examination of the cases cited in the opinion written by Mr. Justice Straup it will be seen that they adhere to and declare this same doctrine. If, however, the construction contended for by appellant of the contract under consideration
There was some evidence introduced at the trial which tended to show that during the time appellant was at work on the mining claims in question respondent B. A. Caldwell visited the property and on several occasions stated to appellant that the work was being performed for himself and the other parties who had put money into the enterprise. This testimony, as hereinbefore stated, was denied by Caldwell, and the jury, by their verdict, found against appellant on this point, and this court is concluded by the finding.
Beferenee is made to the fact that after Brossard had thrown up his lease and quit work Bannof met with respondents and others who had furnished funds with which to enable Brossard to carry on the work under his lease, and that there was some talk of organizing a corporation for the purpose of paying off the debts incurred by Brossard and to further develop the property. This, however, is no proof of the existence of a partnership, nor is it a circumstance tending to
■Council for appellant, in their brief, have assumed that by the terms of the agreement Brossard and the other defendants were to share in the profits should any be realized from the undertaking; and upon this premise they have based the major part of their argument in support of their contention that the parties intended to, and .did in fact, form a copartnership for the purpose of developing the mines in question, and ultimately acquiring an interest therein. I do not think the agreement is open to this construction. As I have hereinbefore pointed out, Brossard, in consideration of the money advanced by his codefendants, agreed to convey to each of them an- interest in the property covered by his lease, repay the money so advanced, and to pay to each a certain proportion of the $10,000 he expected to receive as his share of the fund provided for in his contract with Fan-nof. In other words, Brossard agreed to sell, and each of the other parties to the contract agreed to purchase, a specified part of his (Brossard’s) interest in the property when acquired by him under his agreement with Fannof. Suppose, for example, that the business had proved successful, and the hopes and anticipations of all the parties concerned respecting the productiveness of the property had been fully realized, and Brossard, on receipt of the title to a one-half interest in the property and the $10,000 mentioned, had refused to convey to each of the parties who had contributed to the fund and made it possible for him to- develop the property an interest in the property, and had refused to pay to each a
Tbe distinguishing features between mining and commercial partnerships are pointed out and elaborately discussed in the prevailing opinion. I recognize tbe difference between the two kinds or classes of partnerships as therein pointed out, but, as I view tbe case, these questions are not before us; that is, they are not involved in tbe case. No claim is made that because some of tbe parties to tbe agreement disposed of and assigned their interests therein to third parties tbe partnership', if one was created, was thereby dissolved. Tbe important question presented by this appeal is, did tbe contract, when read and construed in connection with tbe lease, create tbe relationship of partners between Brossard and respondents ? In tbe following cases the construction of contracts similar in character to tbe agreement under consideration was involved, and it was held in each case that a partnership was not created between tbe parties to tbe contract: Blair v. Schaeffer (C. C.), 33 Fed. 218; Seymour v. Freer, 8 Wall. (U. S.), 202, 19 L. Ed. 306; Adams v. Funk, 53 Ill. 219.
In the case of Blair v. Schaeffer tbe contract in part provided that: “Whereas, by virtue of a certain contract made by Samuel C. Schaeffer . . . with P. Cardenas . . . for tbe purchase of 36.47 acres of land in Jackson county, Missouri, . . . for which . . . Schaeffer was to pay tbe said Cardenas the sum of $21,882 . . . : Now¡ it is agreed as said contract is made by said Schaeffer for said land and for prudential purposes that tbe same shall be con
Counsel for respondents say in their brief: “Assuming that the relation of partners did exist, it had been terminated before the obligation sued on was incurred.” The pleadings do not present an issue of this kind. Nor was the case tried on the theory that a partnership had been formed, but was dissolved before the indebtedness in question was incurred. This court, therefore, cannot consider the question, notwithstanding there is some evidence in the record which tends to support counsel’s contention on this point. I am of the opinion, however, that, since the case is to be reversed on the ground that a partnership existed, the district court-
For the reasons herein stated, I am of the opinion that the judgment of the lower court should be affirmed.
Concurrence Opinion
I concur.