57 Mich. 617 | Mich. | 1885
The plaintiff brought an action of assumpsit against the defendants as copartners, to recover of them a
The plaintiff’s account commenced . on the 26th day of March, 1874, and continued until the 12th day of May, 1875, consisting of about 280 different items. The record tends to show the following facts: That in 1874 and 1875, defendant Wyatt was engaged in lumbering operations in Newaygo county under four different contracts. No one but Wyatt was interested in any of these contracts. The four contracts were run from the same camps, and all supplies purchased by Wyatt were used in all the jobs indifferently, without separation. The defendant Sweet was the owner of the undivided one-eighth of the timber put in under one of these contracts. Wyatt also owned one-eighth, one Dickinson one-fourth, and Mr. Gray one-half. Wyatt was also part owner of the timber put in under two of the other contracts. For this lumbering Wyatt was paid by the thousand, and defendant Sweet was to furnish one-eiglith of the amount due Wyatt from time to time for the lumbering, and the other parties interested, their proportionate shares. The supplies sued for were furnished Wyatt by plaintiff to carry on these lumbering jobs. Some of them also went to Wyatt’s family and elsewhere. Martin L. Sweet, defendant Sweet’s father, furnished Wyatt the means to operate these various lumbering jobs, and also furnished defendant Sweet the means to pay Wyatt the one-eighth due him for putting in his one-eighth of the logs. Wyatt, under his arrangement with Martin L. Sweet, drew orders or drafts on him, which he accepted and paid. These orders were signed by Wyatt, “ Sweet & Wyatt,” or ■“ Sweet & Wyatt, by D. Wyatt, agent,” or “ D. Wyatt, agent,” or “ D. Wyatt.” With these orders he sometimes paid his creditors. Plaintiff had two of these orders given him, but these two were drawn by Wyatt. They were not signed
Plaintiff testified that Wyatt told him, when opening the account, that he,'Wyatt, had formed a copartnership with defendant Sweet, and that Martin L. Sweet was going to furnish the money; that it was on the faith that Martin L. Sweet would honor Wyatt’s draft that he gave the credit; that he did not care whether Cassius Sweet was worth a dollar or not. The account was first opened on Kritzer’s books in the name of “D. Wyatt.” The only reason plaintiff had for supposing defendant Sweet to be Wyatt’s partner was that Wyatt so told him, and that he thought he had seen goods marked Sweet & Wyatt, in Wyatt’s wagon.
It further appeared, by way of an attempt by plaintiff to show a partnership between Wyatt & Sweet, or a holding out of Sweet as partner, that it was matter of common notoriety that Sweet & Wyatt were partners; that defendant Sweet was once introduced by Wyatt to Mr. Utley as his partner, and made no disclaimer of that relation; that Sweet introduced Wyatt to Crawford Bros, of Grand Bapids'as his partner; that Wyatt used the name of Sweet & Wyatt in dealing with one S. K. Biblet; that Wyatt was financially irresponsible, and that Kritzer and Martin L. Sweet knew it. Defendant Sweet did not know this fact.
To prove knowledge by defendant Sweet of the fact that Wyatt was trading with the plaintiff in the name of Sweet & Wyatt, the plaintiff was allowed to show that Martin L. Sweet rendered an account of his dealing with Wyatt to Wyatt; that part of such account was in the handwriting of
It was the defendant’s theory, upon the trial of the case, that no actual partnership existed between the defendants, and the court so ruled upon the trial, and the plaintiff then placed his right to recover from the defendants upon the grounds that they represented themselves to him as partners or a firm, did business 'with him and others as a firm, and as such were reputed, and in that capacity contracted the indebtedness for which he claims; and after the account was made out and presented for payment, the defendant Sweet, who now contests it, made no objection to it, but ratified it.
It is true that it .was not necessary that the defendants should have been partners, as between themselves, if they had the goods, to make them liable; but if they held themselves out as such to the plaintiff, it was sufficient. It was not necessary that both defendants should have actually made the purchases, if the defendants had made themselves liable in the partnership relation for what they purchased of the plaintiff; either defendant could create the liability for the purchases after the relation was once established in either of the modes recognized by law. It was of no consequence what was done with the goods, as between the defendants, after the goods were obtained; whether they were used in the family of the one or the other, or for the benefit of both, there was no firm in fact interested. If the defendant Sweet, who now contests the case, ratified the account of the plaintiff in any manner, after it was made, and the amount thereof known to him, the liability of the other defendant not being contested, then the plaintiff was entitled to recover. If the testimony showed, as to this plaintiff, the defendants made themselves
The substance of these legal propositions, as also the following directions, were given to the jury by the ’court in the charge for their guidance in considering the facts, viz.: That the burden of proof rested upon the plaintiff to show that the property was sold; that the balance of the indebtedness therefor remains due to the plaintiff and unpaid; that the defendants did the business with the plaintiff under the firm name ; that defendant Sweet knew it, and did nothing to stop the business, and thereby recognized his liability.
Under the testimony given we think the charge was correct, and the case properly submitted to the jury thereunder, and unless some error has been committed in admitting or rejecting the testimony, the judgment must stand. There was sufficient testimony in the case tending to show that Sweet allowed himself to be held out to the plaintiff as a copartner with Wyatt, to go to the jury; and this is all that is necessary to support the verdict upon this point in this Court, if the testimony was properly admissible. The weight of testimony was for the consideration of the jury upon the merits, or for the circuit judge to consider on a motion for a new trial. And it will not do to say that there was no testimony tending to show that Swpet did not know that he was thus held out, represented and regarded, so long ns he allowed himself to be introduced as a partner of Wyatt, and himself introduced Wyatt to business men as his partner, consented to the firm name, and allowed the use of it in his business done by Wyatt; saw his paper ¿float containing the signature of Sweet & Wyatt, and did not seek to stop its use till disaster threatened.
Counsel for defendant Sweet, assuming that there was not ■sufficient testimony upon the question of joint liability to go to the jury, made many objections, which would not have been offered under a different theory, and we do not,
It is difficult to separate the sayings and doings of Martin L. Sweet, the father of Cassius, from the transactions of Sweet & Wyatt. He it was who suggested the mode and manner in which Wyatt and Cassius should do business, and which was assented to and adopted by them, and he also furnished much of the means with which the business was done. It is possible defendant Sweet may be wronged by the judgment rendered, but we see no way we can aid him in his efforts to correct it upon this record, and
The judgment must be affirmed.
