117 Ga. 759 | Ga. | 1903
Brandon & Dreyer brought an action, in the city court of Macon, upon two promissory notes, against F. B. Dunn & Conner, as a firm composed of F. B. Dunn and B. F. Conner. Conner pleaded the general issue, non est factum, and specially that “he was not and never had been a member of the firm of F. B. Dunn & Conner; that he had never held himself put as a member of said firm; that he had never incurred any liabilities under said firm name, or authorized any one else to incur liability under said firm name.” The case was tried without a jury by the city-court judge, who rendered a judgment, in favor of the plaintiffs, against F. B. Dunn & Conner, and F. B. Dunn and Ben. F. Conner, as partners composing such firm. Conner made a motion for a new trial, upon various grounds, which was granted by the judge, “ upon the sole ground that the court erred in holding and deciding that under the evidence a copartnership existed between F; B. Dunn & Conner as to the plaintiffs, Brandon & Dreyer.” Thereupon the plaintiffs excepted. The question before us, therefore, is, did the court err in granting the defendant Conner a new trial upon this ground. In other words, was the original judgment, holding that, under the evidence submitted, Conner, relatively to the plaintiffs, was a partner of Dunn, demanded by the law and evidence ? Under the law of this State, as laid down by previous rulings of this court, we think that the original judgment was right and the judgment granting the new trial, upon the ground specified, was wrong. Whether Dunn and Conner, relatively to third persons, were partners depends upon the
The construction which Conner placed upon the contract between himself and Dunn is immaterial, and under the law of this State, in a case of this character, the intention of the parties at the time the contract was entered into is likewise immaterial. Whatever may have been the intention of the parties, and whatever may have been the understanding of Conner as to the legal effect of the contract, we think that Conner’s testimony shows that, relatively to third persons, he was a partner of Dunn. The case of Buckner v. Lee, 8 Ga. 285, is directly in point, and is, we think, decisive of the question before us. There it was held that under “ an agreement between A and B, that A should take certain negroes of B, and work them in a blacksmith’s shop, furnish all supplies, pay all expenses, and give B one half of the net proceeds of the shop for the use of the negroes,” they were partners as to third persons. In that case, Judge Nisbet, after quoting from Story and Kent and citing other authorities, said: “It seems, then, clear, that if one is to receive a certain proportion of the profits, as one third or one half, as profits, he is a partner. If a certain sum is agreed to be paid out of profits, and the party does not look to that alone for payment, he is not a partner; but if the sum to be paid is not fixed, but may be increased or diminished by the amount or accidents of the business, then the receiver is a partner. [Citing many authorities.] Now, in this case, the proof is, that for the use of his negroes Everitt was to receive, not a stipulated sum, but one half the net proceeds of the shop. The- amount he was to get was to be paid out of the profits, as profits; and the amount
It is true that each of those cases involved the consideration of a contract made before the adoption of our first code, in which was embodied the definition of a partnership as to third persons which is now contained in the Civil Code, § 2629. That definition is as follows: “A joint interest in the partnership property, or a joint interest in the profits and losses of the business, constitutes a partnership as to third persons. ’ A common interest in the profits alone does not.” But, in construing this section of the code, this court has held it did not change, but simply declared, the previously. existing law. This being true, the cases above cited are directly in point and, in our opinion, decisive of the question involved in the present case. While there is an intimation in Huguley v. Morris, 65 Ga. 669, by Chief Justice Jackson, that the code did change the previously existing law upon the subject
In Powell v. Moore, 79 Ga. 524, it was held that the court below did not err in charging the jury as follows: “ If you believe from .the evidence that the defendant, Mr. Powell, contributed for the use of Marbut a dwelling-house and a store-house, and also contributed the sum of two hundred dollars, whether it be called a loan or otherwise, and that on the other side Mr. Marbut put in two hundred dollars towards the same business, and devoted his time sólely to the attention of that business, and this Mr. Powell looked for compensation to such profits as might be made, whether they be great or small, and that there was no stipulation when he advanced the money, as to the interest he was to receive upon it, or what he should be allowed for the rent, that, gentlemen of the jury, in law would make him a partner of Mr. Marbut in the transaction which you have been investigating.” In that case, the rulings made in cases involving contracts made before the adoption of the code were expressly followed. The learned Justice who delivered the opinion, and who is now the Chief Justice of this court, said: “Judge Nisbet, in Buckner v. Lee, 8 Ga. 289, says: ‘It is clear that if one receive a certain proportion of the profits, as one third or one half, as profits, he is a partner. If a certain sum is agreed to be paid out of the profits, and the party does not look to that alone for payment, he is not a partner. But if the sum to be paid is not
From these decisions, it seems to us that there is no escape from the conclusion that, as to third persons, Conner was a partner of Dunn. If these parties were not to be partners, it is difficult to see why anything should have been said .between them as to what each should “put in” the business, or why Conner “agreed with Dunn to put in [his] sixteen mules and harness against [Dunn’s] six mules.” If Dunn simply hired Conner’s mules and harness, why should there have been any discussion or agreement as to what each should put in the business ? It seems that Conner’s testimony would support a finding that, even as between themselves, they formed a partnership in which Conner put in his sixteen mules and harness against Dunn’s six mules and services, and that Dunn was to run the business and guarantee Conner against loss. But, however this may be, we think, for the reasons stated, that, under the law of this State, there was a partnership as to third persons. The mere fact that, under their agreement, Conner was not to be responsible for any debts that might be contracted, but Dunn alone was to assume and pay them, did not make them any the less partners as to third persons. For, as, said .by Parsons, there may be a legal and valid partnership, although one or more of the parties are guaranteed by the others against loss. The question is, not what they intended by their agreement, but what its legal effect was; and it seems clear to us that under the decision in Buckner v. Lee, and the subsequent decisions which have cited and followed it, there was, at least as to third persons, a partnership between Dunn and Conner.
We are aware that the trend of modern outside authorities is against the old rule laid down in Buckner v. Lee, and that now many courts hold that persons are not liable to third persons as partners, although they share in the profits' of a business, unless they are really partners inter sese, or have held themselves out as partners under such circumstances as to estop them from denying that they were. 1 Bindley on Partnership, 26; Bates, Part. .§ 15 ; Shumaker, Part. 24. For my own part, I wish the law in this State upon the subject of partnership had undergone the change which is pointed out by these authors, so that, even as to third persons, a partnership could not be held to exist, unless there was
Counsel for plaintiff in error cite and rely upon the case of Sankey v. Columbus Iron Works, supra, in which it was held that if the mill, fixtures, and hands used in a sawmill business were furnished by one person, and-another person was employed by him as superintendent only and was to receive one half of the net profits for his services, and had only a common interest in the profits, there was no partnership between the two as to third persons. But we have seen that in that case Judge McCay held that the code had wrought no change in the previously existing law, and, as we have said, this being true, the decision in Buckner v. lee is decisive of the question made in the present case. Besides, in the Sankey case it was held that if a steam sawmill was furnished by one, and the hands to run it by another, who was also to superintend the work, and the profits were to be equally divided between the two, there was, under the code, a partnership as to third persons. Because, in the language of Judge McCay, “ According to this there was a joint interest in the stock, since that was made up of the mill and the hands to work it.” In the present case it might, with equal propriety, be said that the stock was, in part, made up of the mules and harness which were “ put in” by Conner. We think it would be more accurate, in the former case, to say that the stock was made up of the use of the mill and the services of the hands, and in the present case that the stock was in part made up of the use of the mules and harness contributed by Conner.
The case of Thornton v. McDonald, 108 Ga. 3, is also cited by counsel as being very similar to the one under consideration. In that case it was held: “ An agreement to the effect that the owner should furnish ‘the mills, the wagons, the mules, and the hands,’ and another person owning no interest in the property ‘ should give the business [his] personal attention in looking after it, and . .
Judgment reversed.