23 Utah 84 | Utah | 1901
This is an action upon contract, brought by the administratrix of the estate of Moroni K. Williams, deceased, against the defendants as partners doing business under the firm name of Gilmer, Salisbury & Company, to recover $5,500. The suit, in fact, is against the defendant O. J. Salisbury as a partner of the firm, he being the only one upon whom summons was served.
In the complaint it is alleged, in substance, that, on November 20, 1882, the defendants, as co-partners, entered into a contract with the plaintiffs intestate, Moroni B. Williams, by the terms of which the defendants were to pay Williams $5,500 upon the sale of a,certain mining property, known as the Peabody mining claim, and that such payment was to be made only out of the proceeds of the sale when the same was effected by them. On information and belief it is alleged that
Erom tbe evidence introduced by tbe plaintiff, it appears that tbe firm name of Gilmer, Salisbury & Company was signed to tbe contract by John T. Gilmer, a member of that firm; that the firm was composed of John T. Gilmer, Monroe Salisbury and O. J. Salisbury; and that Gilmer was working other mines in tbe vicinity of tbe Peabody mine, but it is not shown that tbe firm, or tbe defendant O. J. Salisbury was interested in any of them. Among tbe instruments introduced in evidence was a deed, dated March 29, 1881, from Williams to Monroe Salisbury, conveying tbe mining claim in dispute for a consideration of $25,000, tbe receipt whereof is acknowledged by tbe grantor, in tbe instrument. The deed is absolute in form and contains nothing to indicate that it was a conveyance in trust, or that the grantee took it in trust for the firm or tbe defendant O. J. Salisbury. Tbe contract sued
The decisive question presented is, whether the contract sued on renders the firm of Gilmer, Salisbury & Company, and, consequently, the individual members thereof, liable for the sum claimed to be due thereon.
Counsel for appellant insist that the presumption of law is that a contract made in the firm name is a co-partnership contract, and argue that the contract itself was prima facie proof that it was made on partnership account, and shifted the burden upon the defendant to show that it was not binding on the firm or on him.
The clause of the agreement, referring to the contracting parties, reads: “This agreement, made and entered into this twentieth day of November, 1882, between J. T. Gilmer, Monroe Salisbury and O. J. Salisbury, co-partners, and doing business under the firm name of Gilmer, Salisbury & Company, parties of the first part and Moroni R, Williams, party of the second part:” Then follow clauses to the effect that-the same mining claim was previously conveyed by Williams to Monroe Salisbury for $16,000, of which $10,500 was paid; that such sale was made for the use and benefit of the firm of Gilmer,
If it be conceded tbat this instrument, in itself, is sufficient to raise a. presumption that it was a partnership contract, then tbe question is, whether tbe plaintiff’s own evidence is of such a character as to rebut the presumption, and show that no recovery against tbe defendant can be bad in this case. TJpon careful consideration we are of tbe opinion tbat this question must be answered in tbe affirmative. It is apparent from tbe proof tbat tbe firm of Gilmer, Salisbury & Company was a non-trading partnership. It was engaged in tbe business of running stages, carrying United States mails, transporting express matter and passengers. Tbe very nature and character of that business is such that, in the absence of affirmative proof, it can not be assumed tbat mining or dealing in mines was within tbe scope of the partnership. No member of tbe firm, therefore, could bind tbe partnership, or any other partner thereof by a transaction, not within tbe ordinary or apparent scope of tbe partnership business, without special authority for that purpose. Of this a person dealing with a partner was bound to take notice. Tbe law, in general, is, that one dealing with an individual member of a co-partnership, as to matters not within the real or apparent scope of tbe business of tbe concern, does so at bis peril, and, in tbe absence
There are other questions presented, but, from the view we have taken of the case, further discussion is not regarded important. We find no reversible error in the record.
The judgment is affirmed, with costs.