148 Ky. 608 | Ky. Ct. App. | 1912
Opinion of the Court by
-Affirming.,,
M. B. Swann brought this equitable action below against T. P. Farmer and L. A. and Z. C. Graham. He charged that he was a member of the partnership of T. P.-Farmer & Company, tobacco buyers; that of the profits Farmer was to get one-third, L. A. Graham one1third, and Z. C. Graham one-third; that by an arrangement made with thq Grahams he, Swann, was to get one-, third of their two-thirds, or two-ninths of the profits., He prayed judgment only against the Grahams; and upon submission the court gave judgment accordingly, for $2,301.50. The Grahams appeal.
The testimony as to the nature of the relation is vol-. uminous, unsatisfactory and conflicting in the -essential elements. Perhaps the most noteworthy circumstances tending to sustain Swann is that neither- of the Grahams nor Farmer explained why or under what arrangement Swann bought tobacco for the firm throughout the season, received it at the warehouse, drew money on account and was actively -engaged in the conduct of the business of the firm. So far as their testimony explains, he was an interloper in all this work; though they say that after much of the work had been done it was agreed between them,, in the absence of Swann and without any understanding by him, that he should be allowed $75 per month. The evidence discloses that Swann was an experienced tobacco buyer of good reputation. It seems
It is urged that no testimony is given showing that L. A. Graham ever agreed to the arrangement. There is testimony, somewhat unsatisfactory in nature, showing that he understood and ratified the arrangement made by Z. C. Graham. There is enough of proof of this fact to sustain the chancellor.
It is urged as well that the arrangement made whereby Swann for his labor was to have one-third of the profits made by the Grahams, was at best a sub-partnership, which did not make him a partner in the firm of T. P. Parmer & Company. This point is well taken. O’Connor v. Sherley, et al., 107 Ky., 70. But whether Swann was a member of any firm with Parmer seems to be largely immaterial. He produced sufficient proof before the chancellor to justify the finding that he was to receive one-third of the profits made by the Grahams; and this the chancellor adjudged to him against the Grahams. It is of no consequence that it be called a partnership, since the pleadings fully advised the Grahams from the beginning as to the details of the' claim asserted against them.
Appellants are right in their position that the existence or non-existence of a partnership cannot be proven by reputation; but no proof was offered in the record of this character. They are likewise right in their view that Swann’s own declarations that he was a partner, as well as any acts of his in holding himself out as a partner, were incompetent as against his alleged partners to establish any liability against them; but there was no objection to the testimony of this character, and it, therefore, is not subject to review.
Nor was there any failure of proof or departure in the proof in the sense that the plaintiff alleged one case and proved another. Prom the beginning his effort was
The whole record discloses a loose and careless business arrangement, of which the proof is far from satisfactory or convincing; but the chancellor’s judgment cannot be disturbed.
It is affirmed.
