Jаckson Ready-Mix Concrete, a. corporation (called ReadyMix), appellee, filed this suit in the Circuit Court
There is no controversy on this appeal over the amount of the judgment, which was based on a contract of November 18, 1961 between Traxler, Inc. and Hyde, Inc. The basic issues are whether the jury was justified from the evidence in finding that Morgan and Hyde formed and continued for some time a partnership for general construction; whether Hyde, Inc., as an agent of the partners, acting within the scope of their partnership and its agency, contracted with the United States of America for the construction of the Spillway, Keystone Dam, Oklahoma; and if it did, whether Traxler, Inc. furnished sand under contract to the partners ’ agent, Hyde, Inc., for that construction. We hold these and other issues were jury questions, and affirm the judgment of the circuit court.
I.
Both Morgan and Hyde were experienced contractors. Morgan also had cоnsiderable financial resources, and was experienced in financing transactions. Hyde was in the general contracting business for many years. In 1952 he incorporated Hyde, Inc., and was the owner of all of its stock (110 shares). Over the years Hyde
Morgan and Hyde executed formal “Articles of Partnership,” dated January 1, 1958, but which Morgan said were signed in late April, 1958. The parties created by it a partnership under the name Hyde-Morgan, for a period of ten years from January 1, 1958, for the purpose of contracting and performing all kinds of construction work anywhere. Paragraph (3) stated: “All bids for work shall be made in the name of R. W. Hyde, Jr., doing business as Hyde Construction Company, or other company under the contrоl of Hyde.” Under this sentence it is manifest the parties intended for bids and work to be done by Hyde or other companies under his control. Each party agreed to contribute half of the capital and half of the bond credit, with the net profits and losses to be shared and divided equally between them.
Under the Articles, Hyde or his representatives agreed to devote the necessary time and attention to bidding, acquiring jobs, and their performance. All jobs performed were to be under the direct management of Hyde or his representаtives, but were subject to supervision and control of both parties at all times. Morgan was to assist in performance of such jobs only in an advisory capacity. Paragraph (6) provided that, out of each pay estimate received by the partnership, or in the name of Hyde, at least 1% of the gross receipts would be deposited when received “into a reserve account of the partnership (designated as Hyde-Morgan Account)” in a bank, and the funds would be withdrawn only on
Two years and three months after its execution, the parties on March 21, 1960 signed a contract terminating the partnership, except for completion of: certain jobs, including the Keystone project. However, both- Morgan and Hyde testified that several days after- the execution of the “Articles of Partnership,” they concluded thé partnership would not work, and terminated it by oral agreement between them. They said their relationship then was modified to limited purposes, under an agreement by which Morgan -would use his ■ credit ■ and resources for the obtaining of funds for construction jobs performed by Hyde or Ms companies, and. for bond credit for them.- In other words, appellants contend that the written Articles .of Partnership were modified by oral agreement of the parties a few days later; that from early 1958 to March 21, 1960 Morgan assisted Hyde solely in financing construction, projects, and lending his credit in securing performance and payment bonds for Hyde’s contracts.
Nevertheless, the evidence was in conflict as to whether the Articles of Partnership were so modified. This specific issue of fact was • submitted to the. jury by plaintiff’s instructions and at least four instructions granted defendants, and the jury found - against them. The evidence warranted this adverse finding, and the jury’s conclusion that the general construction partnership con-
The accbWtank'for- defendants testified that early in 1958 a copy of, the1,1 Aitibles ’''Of' Partnership were furnished him for his'Jnfq’rmatioh in rendering financial .opinions; that he 'made Aeghlar financial statements as to different transactions'until the'partnership’s formal termination'on March 21, I960,'-arid was in frequent contact with'bdtli'-Hydédnd'Morgan;'and copies of financial statements were-sent 'to'bothparties. On July 18, 1958, A. N. Morgan -(the--5CPA): wrote BC E. Morgan, with a cоpy to Hydefa letter-attaching-a schedule “showing in summary1 form tlih''earnings* hád by this joint venture !of yourS'ánd Mr. Hyde-s'-tb date-.’-VIn May, 1958 Hyde by letter instructed ah ittsufan.ce agent, with a copy to Morgan, to’include Morgan?&•'• name in'all-liability policies then he'ld:by'Hyde-'.'Oohstrdctibn Company, Hyde, Inc., Lacoste,' Inc'., and H
&■
-E Engineering Company, Inc. This was doiié, and the-policies were amended- to include Hyde-Morgan as-aii1 additional insured. Workmen’s compensátión policies''were 'taken out in'the name of Hyde-Morgan, but apparently'no premiums were paid on them, since'there wére no employees of Hyde-Morgan, as such. Bids-were'made,-and: construction contracts entered into by'companies'“under--the control,of Hyde,” as provided in Paragraph..(-3),■of-.'the. Articles of-.Partnership. Accountant'A. K Morgan-,testified.-that, after execution of the partnership, hg'r.eement, he 'discussed its problems with Hyde- and'Mofgan, “and at that time it was decided to- use- these'-vafiqué éorpora-té entities and- slide these contracts into. Them. ”' Various contracts -.were entered
On July 1, 1958 one-half of the outstanding capital stock of Hyde, Inc. was conveyed by Hyde to Morgan, for $11,000 in equipment. The parties continued signing bond applications in the same manner.
In the latter part of 1959 a bid was submitted in the name of Hyde, Inc. to the U. S. Army Engineer District, Tulsa, Oklahoma, in connection with the construction of the Spillway, Keystone Dam, Arkansas River, Oklahoma. This bid was accepted, in the amount of $16, 173,876.86. The performance bond application for the specific contract involved in this suit was made to a bonding company, and was signed R. W. Hyde, Jr. individually, E. E. Morgan, individually and as co-partner, Hyde-Morgan, by R. W. Hyde, Jr., and by E. E. Morgan, and Hyde Construction Company, Inc., by R. W. Hyde, Jr. The bond was issued, and the construction contract was executed by the U. S. Army Engineers and Hyde, Inc. on November 18, 1959. Work was begun preparatory to its performance.
Charles Wilson, a representative of Hyde, Inc., contacted Ruel Traxler, president of Traxler, Inc., and told him they had been awarded the contract for Keystone, Dam, and wanted Traxler to go there and produce the sand. Ruel Traxler sent his brother George to examine the project, and they decided not to take the job; Ruel said that in February, 1960 Morgan called him on the telephone, and, after inquiring whether he had been contaсted about the sand work at the Spillway, Keystone Dam, Ruel answered that he had decided not to take it.
On March 21, 1960, seventeen days after the purchase order for sand, Hyde and Morgan executed a document called “Termination of Partnership and Settlement of Estate.” It recited that on January 1, 1958 Morgan and Hyde had created the partnership, “and said partnersMp has served its usefulness and the parties desire to terminate such partnership and settle the estate among themselves.” Hence the partnership was terminated, but it was further stated “that a list of jobs of the parties under contract and in progress are: . . .,” follоwing which was an itemization of seventeen different construction contracts, adequately identified, in Kentucky, Alabama, Oklahoma, and Mississippi, including the following: “Contract for construction of Spillway, Keystone Dam, Arkansas River, Oklahoma, Contract No. DA-34-066-CIVENO-60-864.”
The termination agreement recognized and the parties agreed tlmt the partnership relationship was not totally ended “until the completion and settlement of the last of said jobs of the partnership,’’’ including specifically the Keystone'Dam" Prоject. • The record reflects that the seventeen contracts listed in the termination agreement were' taken in the name of various companies controlled by Hyde, including Hyde Construction Company, Hyde, Inc., Lacoste, Inc. and H & F Engineering Company, Inc.
Further, the parties agreed it was not. desirable to publish notice of dissolution of the partnership. No •one informed any representative of Traxler, Inc. or Ready-Mix that - the. partnership had been terminated, or there had been -.any change in the relationship between Hyde . and Morgan. .On. thе, date of execution of the termination agreement (March 21, I960), Morgan
TJnder all of the foregoing circumstances, the jury was amply .warranted in finding thát Hyde and Morgan organized a general construction partnership on January 1, 1958, and that it continued as-an active partnership through March 21, 1960; - that it continued thereafter, under the provisions of the termination of partnersMp agreement, in order to complete performance of the contracts itemized in the termination -agreement, including the Keystone job: The latter contract recognized that completion and settlement of all of these itemized jobs remained to be done, that Morgan was entitled to 1% of the net amount of all earned - estimates on them, and that, for the purpose оf winding up the .partnership, these relationships continued during the interim period until conclusion, of the remaining construction jobs.
. II.
Furthermore, the jury was • amply justified in concluding that Hyde, Inc. acted as the agent, of the Hyde-Morgan partnership in bidding and executing the construction contract for the Spillway^ Keystone Dam and thé sánd-supply contract with Trailer, Inc. Tliis corporation was the agent of the partners in this respect. The Articles of Partnership provided that all bids for work should be 'made “in the name of” Hyde or companies under the сontrol of Hyde, and jobs should he under the direct management of Hyde. They intended that the partnership would operate through Hyde and his corporations. That was exactly what happened in
1 ALI, Restatement of the Law of Agency 2d (1958), § 21, discussing the capacity of an agent, states: “Any person has capacity to hold a power to act on behalf of another.” Accordingly, “A corрoration, partnership, or other association has capacity to act as ag*ent. ... A corporation may become an agent of an individual or of another corporation, as it does when it makes a contract on the other’s account.” Ibid., § 14M.
3 Am. Jur. 2d, Agency, § 13 states: “A corporation may act as an agent for an individual principal or for another corporation.” National Plumbing Supply Co., Inc. v. Torretti,
The test of agency is derived from a study of the facts of each case. A distinction must be drawn between imposing liability on a principal because of the existence of the agency relationship, in our common law understanding of that relation, from cases in which the corporate veil of the subsidiary is pierced for other reasons of policy. This is a case involving an agency relation, of Hyde, Inc. to the partners. It is different from those cases dealing with disregarding a corporate entity. The latter is not involved here. 3 ALI, Rest. Agency 2d, § 14M, pp. 67-72; Pacific Can Co. v. Hewes,
This case does not involve any issue as to the power of a Mississippi corporation to become a partner. See 13 Am. Jur., Corporations, '§ § 823-825; Rowley, The Corporate Partner, 14 Minn. L. Rev. 769 (1930); Port Arthur Trust Co. v. Muldrow,
Although not as precise as it should have been, the declaration adequately alleged agency. It averred that the Articles of Partnership authorized construction contracts to be made “in the name of” Hyde or companies under his control, and that Hyde, Inc. made the sand agreement with Traxler, Inc. pursuant to the partnership agreement. Morgan’s answer denied this. In effect it and Hyde’s answer denied any agency. The principal instruction granted plaintiff on the merits stated in part that, if the jury found that Hyde and Morgan formed a partnership “and acting within the scope of their partnership agreement, did contract in the name of Hyde Construсtion Co., Inc.” with the United States for the construction job, and the contract was performed by the defendants as partners; and that Morgan represented tó an official of Traxler, Inc. that Hyde, Inc. was performing the work under the contract as a partnership project with Hyde and Morgan as
Defendants’ instructions submitted to the jury issues pertaining to whether the рartnership was one limited to the raising of funds and the acquiring of bond credit, whether the general construction partnership was terminated shortly after its. execution, and the .question of notice to officers of Traxler, Inc. .of dissolution ,of .the partnership. Defendants’ Instruction No. 8 told the jury that, before it could return a verdict for plaintiff, it must find that in 'fact-, a partnership existed between Hyde and Morgan for engaging in the construction business, and such partnership, if it existed, in fact engaged in the construction business at the Keystone Project “eithеr itself or through agents”; that plaintiff and its assignor, intended to receive the obligation of the partnership, not solely .that, qf Hyde, Inc., and under the agreements. of March, and November, 1961, plaintiff intended to obtain the obligation' of the partners for payment; apc|, ,if tW plaiñtiff failed to prove each and all of these matters,’.th.eii it sliould return a verdict for1 defendants. These.instructions'also subniitted to the'jury the pertinent issues, including that Of the agency of Hyde, Inc. for the partners. ;'
Appellee states in one place in its brief that its contеntion is defendants operated at least a portion of their partnership business “under the trade' natne”• of Hyde, Inc., not that Hyde, Inc. was an agent of' defendants. The Articles required jobs to be 'done “in the name of” Hyde or companies under his control.' 'The difference between a partnership operating ‘‘in the name of” a corporation, and a corporation being tlie agent of partners is under these facts immaterial ánd unrealistic. The pleadings and the instructions adequately presented' the issue of agеncy, and the facts supported a finding to that effect.
III.
The statute of frauds requiring agreements which are not to he performed within the space of fifteen months from their making to be in writing does not affect the purchase order of March 4, 1960, or the later agreements. Miss. Code 1942, Rec., §' 264(d). The possibility of performance within fifteen months takes the contract out of the operation of the statute. United States Finance Co., Inc. v. Barber, No. 42,782, decided November 4, 1963.
The defendants pleaded oníy and may raise only the fbregoing* part of, the statute of frauds. However, they argue in their briefs that, if there was an agency by Hyde, Inc. for the partners, it was not in writing, and. thus violated the requirement that contracts for the sale of airdjnterest in lands for a longer term than one.year should be in writing, signed by the party to be charged therewith, “or some person by him or her thereunto lawfully authorized in writing.” Miss. Code 1942, Rec., § 264(c). The written Articles of Partnership . authorized .Hyde or companies under his control, as was Hyde, Inc., to make construction contracts in such agents’ names. ' Thé entire conduct of the parties throughout the period of furnishing the sand by Traxler, Inc. warranted the jury in finding that, the original, purchase order and subsequent modifications of it .were made by Hyde, Inc. with the other contracting-pa^ty. pursuant to the .partnership arrange
Subsequently the parties had a dispute as to the price which was to be paid for the sand. There had been difficulty in supplying the gоvernment with acceptable samples of “blow” sand, Traxler, Inc. contending they were to furnish only river and not “blow” sand, and that there was an oral agreement that the “blow” sand was to be blended by Hyde, Inc. Traxler, Inc. and Hyde, Inc. entered into an oral agreement that the former would do the blending and furnish “blow” sand at a price of $1.25 per ton. Traxler, Inc. began to furnish the “blow” sand, in October 1960, but conflicts between the parties continued, which resulted in -a new written contract between Hyde, Inc. and Traxler, Inc. on March 8, 1961, which in effect guarantеed Traxler, Inc. its cost plus a profit of 5%. Another agreement created a socalled “joint venture” for the production of concrete sand and equal sharing in the profits.
On March 19, 1961 Ready-Mix purchased all stock of Traxler, Inc., which then acquired a new management. On November 22, 1961 Traxler, Inc. assigned to Ready-Mix all of its assets.
By June 1961 Hyde, Inc. was having financial difficulties, and, for the financing' of the Keystone job, Morgan entered into an agreement with Hyde and Hyde, Inc. by which he was to have general control and management of the project and of disbursement of funds. Morgan would lend additional sums not exceeding one
Appellants contend that the November 18, 1961 agreement constituted a novation, and, even if they were previously liable, the alleged novations released them. There was adequate evidence to warrant the jury in finding that plaintiff dealt with defendants as partners, relied upon their liabilities as such, for the entire time during which the materials were furnished, until November 18, 1961; and, as we have previously held, that no notice was given to Traxler, Inc. or its representatives of termination of the partnership. Hence no issue of novation is involved.
Affirmed.