43 Mo. 391 | Mo. | 1869
delivered the opinion of the court.
Defendant is sued as member of the firm of Bloomfield, Ford & Co., late doing business in the city of St. Louis; and plaintiff sets forth separately, stating them in his petition, two grounds of action. First, he charges the firm with proceeds of wine sold for him, and money advanced them as per account filed; and second, for losses and advancements. by him, in an adventure in New Orleans, in the purchase of cotton, in which he claims that the firm were his partners.
The defendant raises several questions in relation to the misjoinder of causes of action and non-joinder of parties, which, in our view of the case, it becomes unnecessary to consider. The judgment of the Circuit Court was in favor of the plaintiff upon both counts, though finding separately the amount due upon each. Had it been based alone upon the liability charged in the first branch of the petition, we could not disturb it. The statement, though objected to by the defendant-as informal, is sufficient to sustain the judgment, and the evidence clearly establishes that portion of the indebtedness. But the second claim is altogether unsupported by the evidence; and that branch of the case being equitable in its character, the evidence comes before us for examination.
The said firm of Bloomfield, Ford & Co. consisted of defendant Joseph M. Bloomfield, James H. Ford, now deceased, and John Tieman, and they kept a storage and commission house in
On a careful reading of the whole testimony, I am at a loss to know on what the judgment of the Circuit Court could have been based. Partnership is a matter of contract. A man cannot be made a partner against his will, by accident, or the conduct of others. He must agree to be a partner, or, as to outsiders, hold himself out as a partner to those who have trusted him as such.
Judge Story best announces the universally conceived law upon the subject, in saying, in section 5 of his work on partnerships, that “it is an established -principle of the common law that, as a partnership can commence only by the voluntary contract of the parties, so when it is once formed no third person can be afterward introduced into the firm as a partner without the concurrence of all the parties who compose the original firm. It is not sufficient to constitute the new relation that one or more of the firm shall have assented to his introduction; for the dissent of a single partner will exclude him,” etc. If a new partner may not
One of these cotton agents positively testifies that the only persons interested in the adventure were himself, Freeman, and Ford, while the other testifies that Ford said that he was acting for his firm, which declaration alone, if actually made, can in no way bind them. The plaintiff doubtless relies upon this declaration of Ford, and also upon his own suppositions in the matter, though they seem to be contradicted by his conduct. He testifies that he inferred from what defendant told him that the house would acquiesce in anything that Ford could engage in, and that Ford agreed that he and the house were to be" equal partners.
But was there an agreement on the part of Bloomfield that Ford might engage him or the firm in any speculation he might see fit ? Cotton dealing was outside of their business; and if it were not, certainly one partner, without the consent of the other, could have no power to take in new partners, even in their legitimate business. The testimony of the plaintiff upon, that subject is this: “I saw Bloomfield perhaps the very day I left for New Orleans. I went in October. Major Bloomfield and I had a talk about the General and Ford. I inferred from that talk that Bloomfield and the house would acquiesce in anything that Ford would engage in. Bloomfield said he had a good thing, and said he wanted me to look after Ford.” This was before the plaintiff had met Ford in New Orleans, and before the
John Tieman, partner, testifies that “ when Ford went to New Orleans, I think I was - not at home ; he had no authority from me nor from the firm, so far as I knew, to do anything for the firm while down South. He had no authority to enter into any cotton or other speculation for the house.” He says he saw Freeman in New Orleans after the cotton adventure; talked with him often about it'; and that he never pretended that the house had any interest in it.
B. A. Tieman, book-keeper, testifies to the same thing in the matter of authority, and says further: “I don’t know of his (Ford’s) doing anything, or pretending to do anything, for the house, except in a few matters of shipments of the house; ” says that they received money from Ford’s friends, in Ohio, to replace in part the cash he had drawn out of the firm on his private account; speaks of Freeman’s return from New Orleans in the spring, which was after the issue of the cotton adventures ; says that he asked for the proceeds of wine sold by the firm for him, which were at once paid him, and a short time afterward
There is much other testimony that does not bear directly upon the main inquiry whether Bloomfield ever made any contract of partnership with the plaintiff or authorized Eord to do so. If there was no such-contract, or if Ford undertook to bind the defendant without authority, then the plaintiff and defendant were not partners, and the second branch of the case falls to the ground. The mooted question in relation to the effect, in dealing with outsiders, of holding one’s self out to them as partners, cannot be raised betweén the parties themselves, for every one is presumed to know who are his associates in business.
The judgment is reversed and the cause remanded for further proceedings.