Earon v. Mackey, No. 319

No. 319 | Pa. | Oct 6, 1884

Mr. Justice Sterrett

delivered the opinion of the court,

In plaintiff’s first, point the court was requested to charge, “ That if the jury believe Newton W. Fredericks became a member of the firm, L. A. Mackey & Co., under the written assignment of November 1, 1855, and accepted the interest therein transferred, he is bound by all the terms of the assignment, and, by accepting the assignment, agreed upon his part to pay any indebtedness then existing against said firm ; and, if they find that the other members of the firm and plaintiff in this suit consented to the agreement, the defendants became liable for the debt.”

The instrument the court was thus asked to construe in connection with the facts to be found by the jury is as follows: “ For value received, I hereby assign and transfer to N. W. Fredericks, the one undivided eighth part of the leases for lumber, coal and clay, as held by L. A. Mackey & Co., at Queen’s Run; also the one eighth of all the property, notes, bonds and accounts, and all other property of every kind belonging to the firm of L. A. Mackey & Co., at Queen’s Run. Creating the said N. W. Fredericks, by this transfer, a partner in the firm of L. A. Mackey & Co. to the amount of one eighth of all its profits and losses from November 1, 1855, and all time prior thereto, commencing with the leases of said company.”

The testimony was clearly sufficient to warrant the jury in finding the facts embodied in plaintiff’s proposition. In view of the circumstances attending the transaction, the manner in which the business of the firm was subsequently transacted, and especially the course of dealing with plaintiff himself, it is difficult to see how the jury could possibly come to any other conclusion than that the defendant, Newton W. Fredericks, became a member of the firm under the assignment referred to, accepted the interest thereby transferred, and that the other members of the firm assented thereto. Without questioning the sufficiency of the evidence to prove these facts, the learned Judge refused to adopt plaintiff’s construction of the assignment, and therefore refused to affirm his first proposition. This is the subject of complaint in the first specification of error.

There could be no doubt as to the correctness of the ruling complained of, if it were not for the concluding sentence of the assignment, which, in express terms, makes the assignee a partner in the firm to the extent of one eighth of all its profits and losses not only from November 1, 1855, but for “all time prior thereto commencing with the leases of said company,” acquired in February, 1858. By accepting the interest transferred to him by L. A. Mackey, and, with the assent of the other members, becoming a partner in the firm on the terms and conditions expressed in the assignment, he acquired all the rights he would have had, and assumed all the obligations he would have incurred by having been an active member of the firm from the date of its formation in February, 1858. It appears to us the paper in question admits of no other reasonable construction without ignoring the obvious meaning and effect of the last sentence thereof. By that the assignee is expressly constituted a member of the firm during the entire period of its previous existence. This being so, it necessarily follows that all the incidents of the partnership relation attached to the membership thus created; and these include not only the right to participate in the profits and distribution of assets, but also the correlative duties of sharing losses and contributing to the payment of debts of the firm, etc.

This construction of the paper is strongly fortified by what appears to have been the understanding of the parties themselves, as shown by the circumstances attending the transaction, and the manner in which their business was subsequently conducted. The firm had been doing business nearly two years before N. W. Fredericks acquired an interest therein, and no inventory had been taken within the last preceding six months. There was no change in the style of the firm or in its books; no balancing of accounts, nor anything indicative of a purpose to distinguish the business of the one firm from that of the other. Debts, contracted by the firm originally composed of three persons, were either partially or fully paid out of the proceeds of property belonging to the firm composed of four members, and the accounts were so kept as to indicate a mutual understanding of the parties that the business was to be continued just as if no change had taken place in the membership of the firm.

We think, therefore, that the plaintiff’s first and second points should have been affirmed, and hence the first and fourth assignments of error are sustained.

There is nothing in the record on which to base the second specification of error. The depositions taken on the motion for new trial are no part of the record. It does appear, however, in a note, appended by the learned Judge to his charge, that after being out all -night the jury in a paper signed by their foreman asked a question, which was answered by the court in the affirmative, but he does not say the answer was conveyed by a tipstave. If it was so communicated to the jury, not then in the presence of the court, the proceeding was irregular and erroneous; but we can take no notice of any fact or circumstance that occurs during the deliberation of the jury unless it is regularly brought to our attention by a bill of exceptions.

The subject of complaint in the third specification is sufficiently noticed in what has already been said.

Judgment reversed and a venire facias de novo awarded.