122 Ga. 353 | Ga. | 1905
This was an action by Mrs. Morrison against Dickey, to recover a sum of money which she alleged had been wrongfully appropriated by Dickey to the payment of her husband’s debt.
No partnership relation existed between Mrs. Morrison and Dickey prior to the time that he knew that the business was owned by her. The partnership up to that time was one composed of Dickey and Morrison. The relation created by a partnership agreement is one founded so essentially upon mutual confidence that there can be no such thing in the law as a partnership between persons unless the persons are known to each other and each has an opportunity to determine whether that relation shall be formed between them. Partnership is founded upon agreement and consent, and there can be no consent to the formation of a partnership with a person who is not known. 1 Bates on Part. § 158; 22 Am. & Eng. Enc. Law (2d ed.), 15. The relation which existed between Morrison and his wife, after Dickey had been admitted as a partner into the business carried on by Morrison, was in the nature of a subpartnership, which made Morrison and his wife partners as between themselves, and as such they assumed all the responsibilities that would be incident to a partnership created between two persons where one furnished the capital and the other the skill and labor necessary in carrying out the enterprise. 1 Bates, Part. §§ 164, 169. How profits between themselves as members of this subparbnership would be divided would be immaterial, and therefore the mere fact that Mrs. Morrison was to receive the entire profits of the business thus carried on in her husband’s name for her benefit would not deprive the business relationship between them of the essential elements of a Subpartnership. It is now the settled law of this State that husband and wife may lawfully engage in business as partners. Ellis v. Mills, 99 Ga. 490. But
In addition to this, while Mrs. Morris.on was not at all bound by the judgment against Morrison and Dickey, and not in any way liable upon the contract which was the foundation of that judgment, this liability of Morrison and Dickey was one of the liabilities of the partnership between them; and when Mrs..
Take still another view of the matter. The subpartnership, or relation in the nature thereof, existing between Mrs. Morrison and her husband, rendered her liable to account to her husband for all legitimate and necessary expenses incurred in realizing or attempting to realize profits from the partnership between him and Dickey; and if the purchase of the machine was necessary or proper for the conduct of the business and was actually used in the business, before Mrs. Morrison could demand from her husband the profits of the business she would have to account to him for the amount for which he.rendered himself liable on account of such purchase. Her protest against its purchase would not avail her as an excuse for not so accounting, if the profits claimed by her were the result of the business in which the machine had been actually used. So that it seems to us that, under any view of the law and facts of the case, no other legal judgment could have been rendered than one in favor of the defendant. There is nothing in the case to authorize a finding that the transaction was a mere scheme or device to use Mrs. Morrison’s money for the purpose of paying her husband’s debt. It was the use of her money to pay a liability which Dickey would have a right to claim against her when she admitted her ownership and accepted position as a partner with him, or it was a payment by Morrison