Bryer v. Weston

16 Me. 261 | Me. | 1839

The opinion of the Court was by

Weston C. J.

It does not appear, that the Bangor & Lower Stillwater Mill Company, is a corporation established by law. It must be taken then to be a voluntary association, transacting business under that name. The order upon which the action is brought, is addressed to S. Peabody, Agent of the company. It is objected, that parol testimony, that each of the defendants admitted himself to be a trustee of the company, is inadmissible, upon the ground that a deed exists, by which they were so constituted. To show however that persons carry on business as partners, or as jointly associated, it is sufficient to prove, that they have admitted the fact, or have held themselves out as such. Even where they are plaintiffs, parol proof is sufficient, that they have actually carried on business in partnership, and it is not necessary to produce any deed, or other agreement, by which such partnership may have been constituted. 3 Stark. 1067. And where they are sued as partners, less evidence is usually sufficient to charge them. The partnership may be proved by their habit and course of dealing, by their conduct and declarations. Ibid. 1070. In Alderson v. Clay, 1 Stark. Cases, 405, this was held sufficient, although the partnership there was proved to have been created by deed, and it did not appear that any notice had been given to produce it. And we are satisfied, that the evidence received in this case, upon this point, was legally admissible.

As to the agency of Peabody, it was not necessary that it should be proved by deed. It appears, that after he had introduced parol evidence of such agency, the counsel for the plaintiff offered to produce a copy from the registry, by which it would appear, that Feabody was appointed their agent in writing. This testimony being objected to by the defendants, was waived by the plaintiff. This being the posture of the case, there is no evidence whatever of the mode of appointment. It appeared, that Peabody had acted for some time, both before and after the acceptance, as the agent of the company, and that orders drawn by him as such, had been accepted and paid by their treasurer. The general agency of Feabody was well known and acknowledged. The objection is not one of a character to be favored ; and if the defendants would insist upon the strict proof, for which they contend, it should have been made to appear, by affirmative evidence in the case, that their agent was appointed in writing.

Exceptions overruled.