160 Va. 214 | Va. | 1933
delivered the opinion of the court.
This case comes to us on a writ of error to the judgment of the Circuit Court of Pulaski county.
The parties will sometimes be referred to in their individual names and sometimes as they were related in the trial court. The case was tried twice. The first trial resulted in the disagreement of the jury. Upon the second trial a special jury was asked for and had, and a verdict was returned for the plaintiff for the full amount sued for, being $4,976.95, with interest. Motions 'were made to strike out the testimony of the plaintiff at the conclusion of the plaintiff’s testimony and also at the conclusion of all of the testimony, and to set aside the verdict as contrary to the law and the evidence and for the admission of improper and illegal evidence and misdirection of the jury. The court overruled the motions referred to and entered judgment upon the verdict.
The facts considered pertinent to be here stated are as follows: In 1923, a partnership for the purpose of dealing in cattle was formed by Henry Flanagan, J. W. Flanagan, W. F. Flanagan, all brothers, and F. H. Flanagan, a nephew of the two former and son of the latter partner. This firm or partnership operated for partnership purposes and sometimes the individuals composing said partnership operated individually, the territorial scope of such operations included the counties in Southwest Virginia beginning with Montgomery county and extending through the intervening counties to the Tennessee line, one of the individuals embraced within his dealings a part of east Tennessee and upon one occasion a considerable number of
N. B. Harvey, the plaintiff in the trial court, had had many cattle transactions with the Flanagans, frequently selling to them his fat cattle and sometimes buying from them his stock or feeder cattle; at least one of the transactions, in addition to the one which is the subject of this action, involved the “buy back” plan. It is, however, claimed
The transaction which is the basis of this section was made in the spring of the year 1929. There were several conversations or interviews between W. F. Flanagan and F. H. Flanagan and N. B. Harvey, which led to the consummation of the deal. The most important one of these was a meeting of the three at the Elk’s Club in Pulaski where N. B. Harvey claims that he was assured by F. H. Flanagan and W. F. Flanagan that he could get the feeder cattle which he needed, seventy-five in number. The transaction progressed to the delivery to him (Harvey) at Wurno, Pulaski county, of sixty of the cattle desired, which were known as the “Mock” cattle. The delivery was made by F. H. Flanagan together with one Scott, and Harvey gave his check to F. H. Flanagan for the purchase price which was $8,356.82. This took place on the 26th of September, 1929. The fifteen additional cattle were subsequently delivered to Harvey at Dublin, Pulaski county, by W. F. Flangan on October 12, 1929, at which time Harvey gave his check for $1,000.00 in part payment to W. F. Flanagan, and on October 22nd the transaction was closed by the check of Harvey for $1,093.62 to W. F. Flanagan. It was claimed by W. F. Flanagan that the fifteen cattle belonged to him individually and were a part of a herd which he had purchased from one Gardner, and that he had let F. H. Flanagan have them to constitute the number contracted for by Harvey. This is the explanation of the two Flanagans for the manner or method by which the purchaser, Harvey,
It appears that in the summer of 1930 the fat cattle market sustained a sharp and devastating decline. The fall approached when the Harvey cattle were ready for the market and it became necessary for Harvey to insist upon the completion of the contract on the part of the partnership to the extent of taking up the cattle and making room for him to install on his farm a new lot of feeder cattle. To this end Harvey notified them that the cattle were ready for shipment. He received a letter dated 'September 27, 1930, from F. H. Flanagan to the effect that the slump in the market and the general depression caused him to be unable to complete the contract and that he (Harvey) was free to ship the cattle on his own account. Harvey in urging that the terms and spirit of the contract be lived up to, wrote two letters, one to W. F. Flanagan dated September 27, 1930, and the other to F. H. and W. F. Flanagan dated September 30, 1930. The wording and phraseology of these letters is strongly relied upon by the partnership and by the Flanagans individually to sustain the position that it was an individual transaction of F. H. Flanagan with Harvey and that he alone was liable therefor. Harvey sued the four Flanagans referred to, as partners, for the
There is evidence in the case to uphold and sustain the theory of the partnership and also that of the Flanagans. Of this we may mention the fact that the evidence tends to show that F. H. Flanagan did a very considerable business on his individual account through the years embraced herein, buying and selling cattle of both types, lambs and hogs. It is shown that these transactions involved an outlay in excess of $800,000.00 through the term of years mentioned. It is also in evidence that in the year 1927 Harvey bought the “Mock” cattle from F. H. Flanagan upon Flanagan’s representation that they were his individual cattle, Harvey paying him in cash for them. It is important to note here that this deal did not involve any credit element. It is also in evidence that F. H. Flanagan made similar deals with other persons upon his individual account.
Upon the part of Harvey, the testimony tends to show that he was not aware of the limitation or restriction of Flanagan Brothers Company as to fat cattle; that before the transaction in question he had occasion to investigate the financial responsibility of F. H. Flanagan which disclosed the fact that he owned no real estate and was not one whom Harvey considered as financially responsible; and that he knew that W. F. Flanagan, J. W. Flanagan and Henry Flanagan were each men who owned very considerable property, real and personal. It was also in evidence that in the year 1929 the partnership admitted buying two lots of fat cattle through F. H. Flanagan who gave his individual check to the owner for the purchase price, the contracts running in the name of Flanagan Brothers Company. F. H. Flanagan’s explanation of this was that the firm had no bank account that year.
Thus there were important facts and indicia supporting
We do not attempt here to give a full résumé of the evidence but simply sufficient of it to make this opinion intelligible and in the view we take of the case and the disposition we shall presently make of it we refrain from further discussion of the evidence, lest in doing so what we might say could be misconstrued upon a retrial which we think becomes necessary on account of misdirection of the jury by the trial court.
We think instructions numbers 2 and 6 given by the court at the instance of the plaintiff constitute reversible error.
They are as follows:
Instruction No. 2.—“The court instructs the jury that when the existence of a partnership is once admitted, it is presumed to continue until dissolved by the acts of the parties, or by law, and in order to escape liability for the acts of the partners, it being admitted that a partnership existed between W. F. Flanagan, Harry Flanagan, J. W. Flanagan and Frank Flanagan at the time of the contract with the plaintiff, and if the jury believe from the evidence that N. B. Harvey had previously dealt with the partnership, that he had the right to presume that said partnership was in force and that the act of each partner, in the real or apparent scope of the partnership business, was the’ act of the partnership, and that any private agreement between the partners that they would do business year by year cannot be invoked in this case unless known to the plaintiff and that N. B. Harvey had a right to presume on account
Instruction No. 6.—“The court instructs the jury that if they believe from the evidence that prior to the contract in question, the defendants formed a partnership for the purpose of buying and selling cattle and that prior to the contract in question the plaintiff had had partnership dealings with the defendants as a firm, that in the year 1929, the plaintiff made the contract in question with one or more members of said firm, reasonably believing that such member or members of the firm were acting for the partnership, that the contract in question was within the apparent scope of the partnership; that the plaintiff had no notice or knowledge, as defined in instruction No. 2, that such member or members of the firm in making said contract were acting in their individual capacity for their own benefit and not for and on behalf of the firm, then under the law the defendants are liable on said contract, and you will, therefore, find for the plaintiff against all of said defendants.”
We think that the vice in instruction number 2 is found in the facts:
First: It is confusing in its terms and did not enlighten the jury, as was its evident primary intention, because it purported in the beginning to tell the jury what conditions and requirements should obtain in order for the admitted partnership to escape liability for the acts of its partners. As a matter of fact it fails to do this and instead of following up the thought it branches off into other matters. In other words, it is disconnected and misleading.
Instruction number 6 is subject to serious criticism, principally because it is expressly tied up with instruction No. 2, which we have already pointed out as erroneous, and the connection between the two emphasized the foreign issue injected into the case by the former instruction. Upon the question of misleading and confusing instructions, see Atkins v. Com., 132 Va. 500, 110 S. E. 379; Pocahontas Con. Collieries Co. v. Hairston, 117 Va. 118, 83 S. E. 1041.
In Scott’s Ex’r v. Chesterman, 117 Va. 584, 85 S. E. 502, 512, it was said: “It has been too often ruled by this court to need citation of authority, that any instruction calculated to mislead the jury, whether it arises from ambiguity or any other cause, ought to be avoided; and if given it will oblige the appellate court to reverse the judgment.”
Both of the above instructions, we think, are in conflict with instruction “A” which was granted by the court at the instance of the defendant and which aptly and correctly presents the law of the case within its limitations. Instruction “A” is as follows:
“The court instructs the jury that to find the defendants liable as partners in this case, the jury must believe from the evidence either—
“(1) That the defendants were in fact, partners in the transaction in question; or
“(2) That the plaintiff was led to believe by the rep
“(3) That the transaction in question was according to the usual course of dealing of the partnership as known to plaintiff, and that plaintiff reasonably believed he was dealing with the partnership, and that the defendant knew, or in the exercise of reasonable judgment should have known, that the plaintiff believed he was dealing with the partnership.”
We find no reversible error in the remaining instructions. It follows that we reverse the judgment of the trial court and remand the case for new trial to be had not in conflict with the views herein expressed.
Reversed and remanded.