Lead Opinion
delivered the opinion of the court.
This action was brought in the St. Louis- Circuit Court by Bobert Campbell and others against John O. Dent to recover the price of certain goods charged to have been sold and delivered to defendant, a bill of particulars of which was filed' with the petition.
The petition charged, that the goods were sold to defendant (together with one John E. Barrow), and that they were delivered to and came into the possession and use of the defend
The plaintiffs recovered a judgment at the special term of the Circuit Court, from which the defendant appealed to the General Term, where the judgment was affirmed, and defendant has brought the case here by writ of error.
The evidence, offered and given on the trial on the part of the plaintiff's,was in substance as follows : John Nolan, a witness for plaintiffs, testified, that in the mopth of November, 1867, he was in the employment of plaintiffs as salesman, knew John E. Barrow, and at the date of the bill sued on was directed by plaintiffs to sell goods to Barrow, the goods set forth in the account sued on. The witness was then asked this question by plaintiffs : “ State what was said and done by Barrow at the time?” Defendant objected to this question, as it was not in proof that Barrow was the agent of defendant, and that there was no such allegation in the petition. Plaintiff’s attorney then stated to the court, that if it was not proved that Barrow was the agent of the defendant, plaintiffs would not ask for a verdict. The court then overruled the objection made to the evidence, to which ruling of the court the defendant excepted. The witness then said, that Barrow directed him to make out the bill to J. C. Dent & Co., to have the boxes, in which the goods were packed, marked to J. C. Dent & Co., Fort Fetterman,which was done. The goods were charged in the sale book to J. C. Dent & Co. On cross-examination witness stated, that he did not know defendant, never had any conversation with him, that what he had said was what Barrow told him; Jhad sold Barrow goods before, but he was not then in good predit; witness did not ship the goods himself or see them shipped.
It was testified by Hugh Campbell, one of the plaintiffs, that at the time of sale, or a few days before, Barrow told witness, that defendant had a permit to trade at Fort Fetterman, a military post in the Indian County, and that Barrow wanted to purchase goods for that purpose, and the goods were sold at the time named. At the time of the sale witness did not
The foregoing, is all of the evidence offered or given by the plaintiffs. At the close of this evidence, defendant moved the court to instruct the jury, that there was no evidence before them which sustained the allegations of the plaintiffs’ petition. The court refused said instruction, to which the defendant excepted. The defendant then read in evidence the deposition of John E. Barrow, which was in substance: That he had known plaintiffs for ten or fifteen years past; he had purchased goods from them frequently ;. that the last purchase was made in Nov., 1867, the bill sued for; the goods were shipped and sent to Fort Fetterman, Dakota Territory; that he bought them for himself; defendant was not present at the time of the purchase; defendant did not authorize witness to use his name; that witness bought the goods on his own responsibility; defendant had the permit from the
The plaintiff introduced evidence in rebuttal, to the effect, that Barrow had not told Nolan and Campbell, that he purchased the goods on his own account to sell under Dent’s permit. This was all of the evidence.
The court then, at the request of the plaintiffs, instructed the jury as follows:
“If the jury believe from the evidence, that the defendant and one John E. Barrow were in November, 1867, engaged in business as post traders at Eort Eetterman, in the Indian Territory, under the name and style of J. C. Dent & Co., the said J. O. Dent being the defendant; that the terms of their partnership were as between themselves, that the said J. O. Dent should procure the permit from the United States authorities to sell goods at that post, that Barrow should furnish the capital, and that the profits of the business should be divided in any proportion between them; that Barrow brought the goods mentioned in the plaintiff’s petition from the plain
The defendant objected to this instruction, and, the instruction being given by the court, .he excepted.
The defendant asked the court to give the -jury several instructions, which, as the case is presented here, it is not necessary to notice. A verdict was returned by the jury in favor of the plaintiffs for the amount of plaintiffs’ account *with interest. The defendant filed a motion for a new trial) stating as grounds thereof the rulings of the court excepted to, which 'was overruled, and final judgment rendered, when defendant again excepted.
The motion for a new trial, in addition to other causes, set forth, that the defendant had discovered new evidence, which was material in the cause, since the rendition of the verdict. The motion was accompanied by affidavits and counter-affidavits filed by the plaintiffs; none of these affidavits need, however, be noticed in the consideration of the cause.
The material questions growing out of the record in this case are, first, as to the propriety of the ruling of the court in admitting what Barrow said and did, at the time that he purchased the goods, to be given in evidence; and second, as to the legality of the instruction given by the court at the request of the plaintiffs. Both of these questions are to some extent involved in the first; for if the evidence referred to was improper, then of course the instruction has nothing to support it. As a general proposition the acts and statements of one, who is charged to be a partner of another, cannot be
It is true, that in the case of Waugh vs. Carver, 2 H. Bl., 247, 2 Vol., Part II, Smith’s Leading Cases, 674, and in other cases referred to, it has been held, that one, who receives a share in the general profits, is liable as to third persons for the losses and debts contracted in the prosecution of the business, and it is upon this principle, as stated in that case, that the plaintiff seems to rely for a recovery in this case. The rule laid down in Waugh vs. Carver has not been adhered to either in England or in this country, but a rule more in harmony with reason and justice has been generally adopted.
Judge Story in his work on Partnership, in treating of this subject, states, “ In short, the true rule ex aequo et bono would seem to be, that the agreement' and intention of the parties themselves should govern all cases. If they intend a partnership in the capital stock, or in the profits, or in both, then that the same rule should apply in favor of third persons, even if the agreement were unknown to them. And on the other hand, if no such partnership were intended between the parties, then that there should be none as to third persons, unless where the parties had held themselves out as partners to the public, or their conduct operated as a fraud or deceit upon third persons.” (Story Part. [6th. Ed.], § 49 and note,where the authorities are discussed.) In order to constitute a communion of profits between the parties,which shall make them partners, the interest in the profits must be mutual; each person must have an interest in the profits as a principal trader. It is not enough, that one shall receive a portion of the profits as a com
The case of Wiggins vs. Graham, decided by this court at the last October Term (51 Mo., 17), was an action brought by a clerk, who was by his contract of employment to receive a portion of the profits of .the business for his services. Judge Adams, in delivering the opinion of the court in that case, held, that the clerk and his employer were not partners, either as between themselves or as to third persons. Erom these authorities it will be seen, that one, who receives a part of the profits, is not necessarily a partner, even as to third persons, and in the present case the statement of the defendant given in evidence must all be taken together, in which he denied that he was a partner, but admitted, that he had an interest in the profits; this he might have and still not be a partner. I therefore think, that there was not enough evidence of a partnership to authorize the' statements and acts of Barrow to be given in evidence against defendant, and that defendant’s instruction at the close of plaintiffs’ evidence ought to have been given. It follows that the instruction given in favor of the plaintiffs was improper.
Eor these reasons the judgment of the Circuit Court must be reversed.
the judgment is reversed and the cause remanded.
Rehearing
delivered the opinion of the court on the motion for a re-hearing:
The counsel for the defendants in error has filed his petition for a re-hearing of the cause, and seems to think, that in the opinion of the court it is held, that a person may hold
We see uo reason to change this view of the case. The petition for a re-hearing is therefore overruled.