Pratt v. Langdon

97 Mass. 97 | Mass. | 1867

Gray, J.

The court is unanimously of opinion that there is nothing in the testimony of Langdon at the second trial, which materially varies the facts of the case as presented to the court last year, and reported in 12 Allen, 544.

Langdon testified that he hired the place where the business was carried on, bought the stock and fixtures and took a bill of sale in his own name, permitted Wilson to carry on business there as long as he should conduct himself well, and charged him no interest on the price of the stock and fixtures; that Wilson was to pay all the expenses of the business, and return to Langdon the value of all he put in, and, if he made anything over his expenses, was to give Langdon half of what he made. Langdon’s testimony that he was not a partner with Wilson is immaterial, for even as between the parties themselves whether there was a partnership is a conclusion of law from the particulars of their agreement, and the question in this case is not whether they were partners between themselves, but whether Langdon was liable as a partner to third persons. His statement on direct examination “ that he had no lien or claim on the stock there” is controlled by his testimony on cross-examination “ that he considered he had a right to take possession when he chose; that Wilson was to pay all the expenses of the business, and return to him the value of all he put in; that Wilson was to use it, and if he made anything, Langdon was to have one half the net profits.” The necessary conclusion from this testimony is that Langdon had an interest in the stock to the amount of the money which he had put in, and an interest in half the net profits of the business after paying that amount and the expenses of carrying it on, and had the right at any time to secure himself by taking immediate possession, without regard to the interest or claims of Wilson or Wilson’s separate creditors.

The rule of law is well settled in this Commonwealth, in accordance with the earlier English authorities, that a person who has not agreed to be a partner, nor held himself out as a partner, is yet liable as a partner to third persons, if by the agreement under which the business is carried on he has an interest in a certain share of the profits as profits, and a lien on the whole profits as security for his share. Pratt v. Langdon, 12 Allen, 546, and cases cited.

It is true that a person not actually a partner cannot be held liable as a partner to third persons who know that he is not a partner. But this point was fully met by the special finding of the jury that the plaintiff believed that Langdon was a copartner of Wilson in the business, and sold the goods, for which the note in suit was given, relying on that belief.

The ruling that the burden of proof was on the defendant to show that the note sued on was given in whole or in part for intoxicating liquors sold by the plaintiff in violation of law, was in accordance with repeated decisions of this court. Wilson v Melvin, 13 Gray, 73. Brigham, v. Potter, 14 Gray, 522. Trott v. Irish, 1 Allen, 481. Exceptions overruled.