241 P. 959 | Ariz. | 1926
This is a suit upon an open account for goods sold by Barton Hat Company between December 4, 1922, and April 18, 1923, and the only question involved below was, and on this appeal is, as to who was the party to whom credit was given. The suit is against John Hyder and Kelly T. Hyder as partners. In their answer they put the allegation of partnership in issue by verified general denial. The trial was before the court without a jury, and judgment was adverse to defendants' contention. They appeal, and urge that the case should be reversed because they say there was no evidence of partnership, or that credit was extended to them as partners.
It is undisputed that defendants started business as partners in Tempe, Arizona, some time prior to 1912, under the firm name of Hyder Brothers; that in 1912 a store was opened in Phoenix in the same name under the management of John Hyder; Kelly T. remaining in charge of the Tempe store. The Phoenix store opened an account with plaintiff on April 24, 1915, under the firm name, and made orders in such name from time to time until December, 1922. In January, 1923, the Phoenix store incorporated under the name of Hyder Brothers, Inc., and the Tempe store under the name of Hyder Mercantile Company. The goods for the price of which this suit was brought were ordered during April, 1923, except an item of 38 cents, being a balance on account for December, 1922.
The plaintiff's general manager testified to an eight-year continuous course of dealings with defendants as a copartnership, and that his firm had received no notice that the status of Hyder Brothers had changed; that his firm had not extended credit to the corporation, but that the credit had been given to the partnership. John Hyder testified that he had notified *382 plaintiff's salesman, at the time goods sued for were ordered, that the purchase was being made by the corporation, and he also said he notified everybody he owed by letter that he had incorporated the Phoenix store. He also stated that he and Kelly had not been interested together as partners since 1912, when the Phoenix store was established; that from that date he owned the Phoenix store, and Kelly the Tempe store. However, this testimony was weakened because of the fact that he and Kelly, as partners, in January, 1923, signed bills of sale transferring said stores to the incorporations organized as the successors of the two stores; also, such statements are further weakened by the fact that no public notice or announcement of the dissolution of the partnership business in 1912 was made at the time or afterward.
It was the duty of the trial court to reconcile the conflicts in the testimony as best he could, and we have uniformly refused to disturb that tribunal's decision when it was a question of the weight of the testimony or the credibility of the witnesses.
Hyder Brothers, inter se, may not have been partners but as to the general public they were. We think it was the duty of defendants, under the circumstances, to produce sufficient evidence to convince the court that plaintiff had notice of the changed status of Hyder Brothers from a partnership to a corporation, and that the credit was extended to the latter, and not to the former. A case of very similar import is that ofOverlock v. Hazzard, reported in
It is accordingly so ordered.
McALISTER, C.J., and LOCKWOOD, J., concur. *383
