141 Ky. 407 | Ky. Ct. App. | 1911
Opinion of thf. Court by
Affirming
Appellants, -H. W. Bowman and E. L. Cockrel, as partners doing business under the firm name of Bowman & Cockrel, brought this action against the appellee, Ed Blanton & Company, a corporation, to recover the value of certain lumber which they charged in their petition had been stolen by one Spahn and-sold to appellee for the sum of $234.67. It was further alleged in the petition that appellee had converted the property to- its own use and had failed, upon demand, to pay appellants the value thereof, amounting to $269.13. Judgment was prayed for this amount, together with interest and costs. Appellee filed an answer traversing the allegations of the petition. Upon- the conclusion of appellant’s evidence
H. W. Bowman, one of the appellants, testified, in substance, as follows: Tie and E. L. Cockrel were partners engaged in a general lumber business at Livingston, Kentucky. They were so engaged at the time of the transaction complained of in the petition. For several years prior to the fall of 1908, W. F. Spahn had been working for them as their agent in buying and selling lumber. Spahn’s relation with them as such agent ceased entirely in the late fall of 1908. While Spahn was working for them he purchased the lumber in controversy from John Moberly with funds furnished by appellants. Spahn had the lumber hauled and put in the yard near the railroad tracks at Lily, Kentucky. In the summer of 1909, after Spahn’s relations with them had entirely ceased, as claimed by the witness, he agreed to sell the lumber to a party at Lancaster, Kentucky. When he went to Lily he ascertained that Spahn had a short time before sold the lumber to appellee, Ed Blanton & Company. He then called upon Ed Blanton & Company, and Mr. Ed Blanton of that firm admitted that he had bought the Moberly lumber and had given Spahn a check for it, payable to Bowman & Spahn. Spain did not turn over any part of this sum to appellants. Appellants had not authorized Spahn to make the sale to appellee, and the sale was made without the authority and without the knowledge of appellants. On cross-examination, in answer to a question calling for the terms of the contract between appellants and Spahn, witness stated that Spahn had no money of his own; that Spahn and witness entered into a contract, by the terms of which appellants were to furnish all of the money and Spahn was to perform all the labor in buying and selling lumber on the commission basis. In .each case, when lumber was sold appellants were first to have returned to them such money as they had advanced for the purchase, and the remaining profits, if any, from such sale were then to be divided, one-half to appellants and one-half to Spahn. Except his share of the profits, Spahn was to receive no compensation from appellants for his services. Acting under this agreement, Spahn bought and sold and traded in lumber with various parties for a period of several years. Under the agreement appellants were to keep records of the various transactions and to have settlements with Spahn from time to time. In
The other testimony for appellants relates to the shipment and sale of the lumber in question by Spahn to appellee.
It mav be admitted that profit-sharing is not always a conclusive test of partnership. Thus a party may employ another to work for him and give him as compensation a certain portion of the profits, with no liability on the part of the person employed to pay his part of the losses. Or where a person rents.to another an establishment and agrees to take for his rent certain portions of the profits: he will not be considered a partner. (Fuqua Smith v. Massie & Sons, 95 Ky., 387.) Or if a nartv loan raonev to another and agrees to take certain marts of the profits of the business venture in which the borrower is engaged as interest on the money loaned, the partv making the loan will not be considered a partner. Whatever may be the difference of opinion as to profit-sharing being a test of partnership, and however many exceptions there may be to the rule that pro
Appellant Bowman admitted, on cross-examination, that appellants were to furnish the money and Spahn was to perform all the labor incident to the buying and selling of lumber. In case there were profits, these were to be equally divided; in ease of losses, Spahn was to bear his share. This being true, it is immaterial that Bowman called Spahn an agent. His opinion of their relations will not control in the face of his admission that appellants and Spahn were to share the profits and losses of the business, which is conclusive of the fact that they were partners.
But, it being determined that a partnership did exist between appellants and Spahn, what effect did the severance of their partnership relations in the fall of 1908 have upon the transaction in question? How the alleged dissolution of the partnership was brought about does not appear; but it may be conceded that, where no definite time is fixed for the continuance of the partnership, it is a partnership, at will, and any partner may, in the absence of fraud, dissolve it at his pleasure by merely notifying his partners that the partnership between him and them is at an end. (Am. & Eng. Encyc. of Law, volume 22. page 204.) Even if we admit, then, that Bowman did dissolve the partnership relations existing between appellants and Spahn by giving such notice to •Spahn, the law is well settled that the act of either partner, notwithstanding the dissolution of the partnership, will continue to be obligatory upon the others until due notice of dissolution is given. (Price & Co. v. Towsey, 3 Litt., 423.) All persons who have had dealings with the firm before the dissolution are entitled to actual -notice. (Am. & Eng. Encyc. of Law, volume 22, page 170; Mitchum, et al. v. Bank of Kentucky, 9 Dana
In the present case it is admitted that there was neither actual notice nor notice by publication. Nor were any facts adduced in evidence from which a jury might infer that appellee had knowledge of the dissolution of the firm. That being true, the act of Spahn in selling the lumber was binding on the firm, just as much so, in fact, as would have been the sale by Bowman to the party at Lancaster if the latter had bought the lumber wit!tout due notice of the dissolution of the partnership. As the act of Spahn, in making the sale, was binding on the partnership, the payment to him discharged the debt although he failed to account to the firm for the money. (Collins v. Collins, 26 Ky. Law Rep., 1037.)
Prom the foregoing, it follows that the court properly instructed the jury to find for appellee.
Judgment affirmed.