39 Neb. 540 | Neb. | 1894
January 12, 1888, the plaintiffs in the court below (defendants in error here) filed a petition in the district court of Lancaster county, in an action against William Roggenkamp and Charles Scott, partners, doing business as Scott & Roggenkamp, as defendants. The petition is short and we will give a copy of it:
“The above-named plaintiffs, a firm doing business at Lincoln, Nebraska, complain of the above-named defendants, a firm doing business at Bennett, Nebraska, for that on the 10th day of August,-1886, plaintiffs sold and delivered to William Roggenkamp certain merchandise, consisting of smoked meats and hams, in the reasonable value of $33.40, which amount said Roggenkamp agreed to pay; that the same has not been paid, nor any part thereof; that there is now due from defendants to the plaintiffs thereon the sum of $33.40 and interest.
“Second — Plaintiffs further say that the said merchandise was purchased by the said Scott in the name of William Roggenkamp, and the same was shipped and delivered by plaintiffs to said Roggenkamp.
“Third — Plaintiffs further say that the said Scott, at the time of the said purchase, was in business in Bennett, Nebraska, as partner of the said Roggenkamp and that the said merchandise, as plaintiffs verily believe, was purchased for the use and benefit of said firm, and that said firm is liable for payment of the same.
“Plaintiffs pray judgment for the sum of $33.40 and interest, and costs of suit.”
To this petition Scott did not answer. Roggenkamp, as answer for himself, filed a general denial. A trial was had to the court and a jury, and the jury rendered a verdict, which was as follows:
*542 “Hargreaves Bros., Plaintiffs, v. William Roggenkamp.
“We, the jury, duly impaneled and sworn in the above entitled cause, do find for the plaintiff and assess the amount of their recovery at the sum of thirty-three and dollars principal, and seven dollars interest.”
A motion for a new trial was filed, argued, and overruled, and judgment rendered on the verdict against William Roggenkamp, and the case is brought here on error for our consideration.
The first assignment of error argued by plaintiff in error in his brief is that the verdict is not supported by sufficient evidence. We have read and considered (he whole of the testimony carefully, and are satisfied that (here was sufficient evidence to warrant the jury in believing that Roggenkamp furnished the capital and Scott contributed his services and they engaged in the business of running a butcher or meat shop, the profits of such business to be shared equally. This would constitute them partners within the rule or definition announced by this court in the case of Strader v. White, 2 Neb., 348, where it was said: “If a person contract with a partnership to contribute his services to the enterprise, for which he is to be compensated by a proportion of the profits,- he becomes a member of the firm and liable for its debts, although he do not stipulate to bear any part of the losses.” In the body of the opinion written by Lake, J., we find the following statement: “It is argued, however, that there is no agreement on the part of the Whites to share in the losses which might occur, and therefore they cannot be held to-be partners. This proposition is altogether untenable. In the first place they could receive no compensation for their skill and labor except out of the net profits. If these failed, they must necessarily share in the losses, at least to the extent of the value of the skill and labor contributed by them. It has been held
The next assignment of error is that the court erred in' giving to the jury instruction No. 4, which was as follows: “ If you find from the evidence that the defendant Roggenkamp entered into an arrangement with Charles Scott, his co-defendant herein, whereby he became a partner of said Scott, in the business engaged in, and was to receive half the profits of said business, in pursuance of such agree-ment, such arrangement would make said Roggenkamp a partner of said Scott in their business, and he would be liable for debts contracted by the firm as partners in and about the carrying and management of said partnership business.” It is contended that by'this the jury were told that if they found that there was to be a division of the profits, this would constitute the defendants partners. This is not strictly correct, as it will be seen the jury were further told that they must find from the evidence that Roggenkamp and Scott had entered into an arrangement
Plaintiff in error objects to the verdict, that it is, both in form and substance, against Roggenkamp alone. We have reproduced the verdict in another part of this opinion^ and by referring to the copy it will be ascertained that it was entitled “Hargreaves Bros. v. William Roggenkamp.”
The further and main objection to the verdict is its being against Roggenkamp, of defendants, alone and omitting the other defendant Scott. It must be borne in mind that this is an action on account, from all the information we can get from an examination of the record, against the individual members of the partnership, and it was competent and proper in such a case for the jury to return a verdict against one of the members of the firm, and such a verdict warranted the court in rendering judgment thereon against the party therein named. Section 429 of the Code of Civil Procedure provides as follows: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants;' it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several deféndants, the court may in its discretion render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs in favor of
There is the further thought here which has a bearing upon this branch of the case: Under the evidence, the jury, viewing it in the light of one set of facts, might well have determined that the meats were bought for Roggenkamp on his own account by Scott as his agent. The evidence to support a finding that this was the individual debt of Roggenkamp was strong and amply sufficient to sustain a verdict founded upon such a conclusion, and we are almost led to believe, from a careful perusal of the testimony, and the verdict as rendered by the jury, that this was the conclusion which they did reach; and if so, we think it would not be reversible error, under the pleadings in the case and evidence introduced. “In an action against two jointly, as partners, a recovery may be had against one alone, on proof that the debt sued for was his individual debt.. Following Maynard v. Ponder, 75 Ga., 664.” (Ledbetter v. Dean, 9 S. E. Rep. [Ga.], 720.) But if arrived at by the jury on either of the above theories of the case as presented in the evidence, — it is immaterial which, — the verdict was sustained by the testimony and there was no error in either its form or substance which calls for a reversal of the judgment. The judgment of the lower court is
Affirmed,