200 P. 1011 | Wyo. | 1921
The parties will be hereinafter referred to in the same order as in the court below. The plaintiff sues the defendant for a balance of $3668.91 and interest for goods sold and delivered to defendants commencing with January 30, 1917, to and including June 30, 1917, Plaintiff is a cor
1. The defendants allege as error' the method of examination of the defendant Wallace. His deposition had been excluded upon protest by defendants, and he was then called and asked whether at the time of the taking of the deposition he had not made certain statements — all relating to the receipt of the various shipments of goods. Counsel for defendants contend that the witness, like any other witness, should have been asked to testify to the transactions directly, rather than relative to the statements that he had made. While we see no advantage gained by counsel for plaintiff in eliciting the testimony in the manner in which they did, it was not improper to do so. Testimony as to admissions made by a party to the suit is primary evidence, and such admissions may be proved by any competent witness who heard it. (22 C. J. 410.) The defendant Wallace was a competent witness. He was asked the same questions that any other witness would have been asked, except only that they were made to conform to the fact that he himself made the admissions, and except, further, that they were leading. Being a competent witness,
“It has sometimes been said, that you cannot show the admissions or declarations of a party, who is himself a competent witness in the case, but must call him as a witness. But we apprehend there is no soundness in this declaration. If the admissions of a person are competent evidence in a case, it is not important how they are shown. It may be by writing, under the hand of the party, or by a witness, who heard them made, or both, or the party himself may be called. And if called, and does not recollect the admission, or if he denies making them, they may still be shown by other testimony. All that can in any case be made out of the party omitting to call the person, making the admissions, to prove them, is merely one of presumption or argument. The omission to call the very person making the admissions, when he is a competent witness, is always liable to remark, and will weigh more or less, according to circumstances. But this is all which can be justly objected against such course. If the admissions are themselves evidence, it matters not how they are shown, so it be satisfactory to the triers, to show they were in fact made. ’ ’
2. Counsel for the defendants contend that the arrangements made at Thermopolis on January 10th, 1917, constituted such a contract as was within the statute of frauds, and that the evidence in regard to them was inadmissible, relying upon sections 4719 and 4726 of the statutes providing in substance, among other things, that an oral contract for the sale of goods of the value of $50.00 is not enforceable unless the buyer accepts and receives part of the goods. They do not contest the rule that a delivery, or partial delivery and receipt and acceptance of the goods, takes the case out of the statute. (See Berry v. Summers, 13 Okl. 425, 130 Pac. 152, also note to 11 Ann. Cas. 517, 20 Cyc. 247.) No contention is made, and it could not well be, that
“It is to be borne in mind that, in all cases where there is no memorandum or note in writing of the bargain, the*49 verbal agreement of the parties must be proved. The statute does not prohibit verbal contracts. On the contrary, it presupposes that the terms of the contract rest in parol proof, and only requires, in addition to the proof of such verbal agreement, evidence of a delivery or part payment under it. It does not therefore change the nature of the evidence to be offered in support of the contract. ■ ’
The test, in a ease like that at bar, is as to whether there has been shown an oral contract, and a delivery, acceptance and receipt pursuant thereto. If these facts appear, then the requisites of the statute are fulfilled. (Marsh v. Hyde, supra; Pinkham v. Mattox, 53 N. H. 600; McMillan v. Heaps, 85 Nebr. 535, 123 N. W. 1041; Hinchman v. Lincoln, 124 U. S. 38, 54; 8 Sup. Ct. 369; Brown, supra., § 337; Williston on Contracts, § 540.) If there is a contract for delivery of goods, and a subsequent delivery thereof is made, and the goods are received and accepted by the purchaser, then the conclusion may be warranted, that delivery was made pursuant to the contract. So, if a contract is made with a partnership, and a delivery is made to one partner, accompanied or followed by receipt and acceptance of the goods, then, too, the same conclusion may be warranted, because delivery to and acceptance by one partner is a delivery to and acceptance by the partnership. (Blumenthal v. Greenberg, 130 Cal. 384, 62 Pac. 599; Adler v. Wagner, 47 Mo. App. 25; Williston on Contracts, § 548.) In the case at bar, defendants seek to deprive plaintiff of the very means of proof which the statute of frauds contemplates and provides as at least part of the means by which a sale may be taken from out its operation. That cannot be done. All the facts and circumstances tending to identify and fasten responsibility upon the real purchaser, his relationship to the party to whom the goods are delivered, and the capacity, individual or otherwise, in which the defendant made the contract are admissible In evidence. (35 Cyc. 567; Botefuhr v. Rometsch, 34 Or. 491, 56 Pac. 808; Blumenthall v. Greenberg, supra; Munroe v. Mundy & Scott,
“The appellee moved to strike from the record the testimony of Munroe, the appellant, as to the alleged sale of the team, for the' reason that no part of the consideration was paid, and there was no delivery of the team. This objection is based upon the first division of Code See. 4625, being the statute of frauds. It, of course, will not be claimed that, if Mundy & Scott purchased the team for themselves, and that delivery was not made to them until several days after the contract was entered into, proof of the contract, to sustain a recovery against them, must be in writing. It is only when no part of the purchase money has been paid, and no part of the property delivered, that the rule has application. ’ ’
3. The next contention of defendants is that the court should have directed a verdict in their favor, for the reason that it is shown by the undisputed evidence that delivery of the goods was made to the Stone Front Grain Company, a Corporation, and not to defendants. The force of this contention is considerably weakened by reason of our determination that the testimony regarding the arrangements made on January 10th, and regarding the statements of defendants then made is admissible. We do not think the point well taken, but, on the contrary, think that there was sufficient evidence to warrant a finding for defendants. As we stated before, delivery to and acceptance by a partner is delivery to and acceptance by the partnership. A person may be liable to a third person if he is an actual partner of another or holds himself out as such. If á person holds himself out as a partner of another and credit is extended to the partnership on the strength there
“The question is, whether the facts found establish á legal liability against Meyer. We think they do, for the reason that he was a party to the contract of purchase of the goods. The credit was given to the individuals who were to become members of the proposed partnership; and this was done with the express assent of Meyer. Although, therefore, the agreement was that the partnership should not commence until some timé after the purchase, and the agreement was riever carried out, yet the purchase itself was a quasi partnership transaction; and having been expressly sanctioned by Meyer, he is estopped from disputing his liability.”
In the ease atibar, the evidence shows without dispute that there was at least a holding out by both defendants as to a partnership in future. In fact, we think that it may be said that the holding out was as to a partnership then existing, or at least, as to one then commencing. The de-defendants stated on January 10th, 1917, that they were going t,o be associated together in the feed business, wanted to buy goods from plaintiff for that purpose, and desired an extension of credit. Now it is often necessary for a partnership to arrange for the purchase of goods and for an extension of credit; to do so is frequently one of its important business transactions, and when goods are subsequently bought and credit extended pursuant to such arrangement, it may well be said that the proof thereof shows an actual working partnership or at least the commencement thereof.
“The general rule is that parties who associate themselves together and actively engage in business for profit under any name are liable as partners for the debts they incur under that name. It is an exception to this rule that such associates may escape individual liability for such debts by a compliance with corporation laws or by a real attempt to comply with them which gives the color of a legal corporation, and by the user of the franchise of such a corporation in the honest belief that it is duly incorporated. When the fact appears, as it does in the case at bar, by indisputable evidence that parties associated and knowingly incurred liabilities under a given name, the legal presumpr tion is that they are governed by the general rule,. and the burden is upon them to prove that they fall under some exception to it.”
The burden has not been sustained by defendants. No notice of any kind appears to have been ever sent that plaintiff could no longer rely upon the arrangements made on January 10th. There is nothing to show that the partnership was ever dissolved, that notice of dissolution was given, or that the business of the partnership was transferred to the Stone Front Grain Company. The Stone Barn Grain Company was not a corporation; it was nothing but a name under which defendants conducted their business; the letter-heads of defendants containing that name did not com vey information that the Stone Front Grain Company was
“There is nothing to show that the partnership business; was settled, or that an inventory was taken of the property of the corporation, or even that the stock of the corporation had been paid for. According to the proof, the most that can be said in favor of the corporate proposition is that the partners had determined to merge the firm, with its. assets and liabilities and the partners’ holdings, into a corporation, with the same relative position among themselves. But it is not pretended that any knowledge or information of this change was actually given to appellee or to other employes. Under the proof the court would not be authorized to say as a matter of law that appellee was employed by a corporation of whose existence he had not learned. There was no contract of employment entered into on May 15, 1900. The old contract simply continued, and appellee went to work as usual. He had been engaged by the partnership, and had neither been discharged or re-employed. Appellee was therefore in the employ of the partnership,*56 and not the corporation.' In the absence of proof of a dissolution of the partnership and an assumption of that busi-> ness by the corporation, the court was not authorized to say that the organization of a corporation in Hardin county, by the partners, to engage in the same business as the partnership, would operate as a dissolution of the partnership existing in Hart County or anywhere. ’ ’
(See also The Christian, etc. Grocery Co. v. Fruitdale L. Co., 121 Ala. 340; 25 So. 566; Ward Fruit Co. v. Bryan & Lamb, 144 Ga. 769, 87 S. E. 1037; Provident Bank & T. Co. v. Saxon, 116 La. 408, 40 So. 778.) Accordingly, we think that our finding on the last shipments must be the same as that in regard to the first two shipments.
Counsel for defendants contend, that, in view of the testimony of the defendant Wallace that he ordered the goods shipped and did business as manager of the corporation, it became a question of fact for the jury as to who received' and accepted the goods in question. However that might be under other circumstances, it appears in this ease that each party, at the close of , the testimony, asked the court for a directed verdict, without at any time, before or after the ruling of the court thereon, asking that the jury pass upon any questions of fact. By this course they waived the right to have the jury pass on any question of fact, and transferred its functions to the court. A finding of fact by the court made under such circumstances should not be set aside by a reviewing court unless clearly against the weight of the evidence. While this point has never been passed on by this court, and counsel have not called it to our attention, we find this to be the rule in the Federal courts, and the prevailing rule in the State courts. (Empire State Cattle Co. v. R. Co., 210 U. S. 1; 52 L. Ed. 931; Fifty Asss. Co v. Quigley, 56 Mont. 348; 185 Pac. 155; Butcher v. Butcher, 21 Colo. App. 416, 122 Pac. 397; City of Deadwood v. Hursh, 30 S. D. 450, 138 N. W. 1122; Howell v. Bowman, 89 Nebr. 389, 131 N. W. 597; Perkins v. Commissioners, 88 O. S. 495, 103 N. E. 377; Koehler v. Adler,
There is, in our judgment, sufficient evidence to sustain the finding of the court below. The judgment herein accordingly should be, and is, affirmed.
Affirmed.