John T. Griffith & Co. v. Buffum & Ainsworth, 22 Vt. 181

22 Vt. 181 | Vt. | 1850

The opinion of the court was delivered by

Hall, J.

The question for our decision is, whether, upon the facts reported by the auditor, the defendants are properly chargeable with the marble slabs sold and delivered by the plaintiffs to the defendant Buffum.

There seems to be no doubt, that if one partner purchase property upon his single credit, for the use of the partnership concern, and the seller is not aware of the existence of the partnership, he may, when he discovers it, have the benefit of the partnership liability. The ground of making the partnership firm liable is, that the property having been obtained for their joint benefit and to enable them to make a common profit, it is but just, that they should be jointly liable to pay for' it.

It is doubtless essential to the validity of such a claim by the vendor, that the partnership should have been unknown to him at the time of the sale; for if he were aware of the partnership, or ignorant of it through his' own fault, he would be presumed to have made his election to give credit to the individual instead of the firm, and, having made such election, would be bound by it. 3 Stephens’’ N. P. 2402.

It is not claimed on the part of the defendants, that the plaintiffs had any knowledge, that they were partners. The existence of such partnership' is denied, and the question is, whether the defendants were in fact partners.

It is true, that two or more persons may be made liable to third persons as partners, when, as between themselves, they are really not so. Bui such liability only arises, when third persons have trusted to their credit, — have parted with their property upon the faith of the acts or declarations of the supposed partners, indicating that they were such. In this case the plaintiffs were not deceived by any false appearances; they gave no credit to the firm, but trusted Buffum only; — and if Ainsworth is to be made liable, it can only be, because he was really and truly a partner with Buffum.

In order to constitute a partnership between the parties themselves, it is necessary, that they should have a common interest iii the profit and loss of the business, in which they are engaged. It is not essential, that each should furnish a share of the capital, or property, which is to become the stock or subject matter of the business of the partners. One may furnish the capital, or stock, and another contribute his labor and skill. And if it be agreed between the parties, that one shall furnish on his own account a particular kind of stock to be used in the business, yet, if when purchased it becomes the subject of labor and skill, and in its altered state is to be sold for the common benefit, it constitutes a partnership business; and if such particular kind of stock be purchased on his own account by the party, who is, by the agreement, to furnish it, yet the seller, on discovering the partnership, may make the firm chargeable for it. This position is sustained by many authorities referred to in the argument. 3 Kent 26. Sylvester v. Smith, 9 Mass. 119. Everitt v. Chapman, 6 Conn. 347.

In the present case the parties agreed to work together in the business of manufacturing marble. Buffum was to furnish the marble and Ainsworth to pay him one half of the cost of it. Buffum was to board Ainsworth, and both were to contribute their labor and skill in the business; and the products and avails of the business were to be equally divided between them. We think, the parties became strictly partners, as between themselves. Whatever the manufactured articles should sell for, above the cost of the materials and labor bestowed upon them, would be profits, which the parties were to share in common j and if the sale should be for less than such cost, the parties would suffer a loss, which would fall equally on both. The defendants thus having a common interest in the profit and loss of the business, and the marble charged in the plaintiffs’ account having been used by the defendants in such business, we think they are liable for it as partners.

The judgment of the county court is therefore reversed, and judgment is to be rendered for the plaintiffs for the amount of their account, as reported by the auditor.