172 P. 330 | Mont. | 1918
delivered the opinion of the court.
Action by the respondent against “A. C. Bruce, F. C. Parker and F. J. Edwards, partners doing business under the firm name and style of the Confederate Creek Farm,” to recover the contract price of a certain tractor sold by the respondent to the
1. To support the issue of partnership the respondent presented these facts:
(a) On April 11, 1912, Edwards executed a deed conveying
(b) The sum of $6,000 for the carrying out of the project was borrowed from the Union Bank & Trust Company of Helena, upon notes signed by Edwards, Bruce and Parker; thereafter it was ascertained that additional funds to the extent of $2,000 would be needed, making in all $8,000, and it was then agreed that Edwards should obtain the total sum from the Montana Life Insurance Company on mortgage of the real estate executed by Edwards and wife, with which moneys the notes to the Union Bank & Trust Company should be taken up and the balance applied to operating costs, all of which was done; Bruce and Parker had by this time paid the consideration for the deed, but apparently the latter had not been delivered, for the agreements and the deed were on July 22, 1912, placed in escrow with a stipulation that the deed should be delivered upon payment of the mortgage obligation to the insurance company.
(c) The moneys procured for the development and operation of the property were carried in an account at the Union Bank in the name of the Confederate Creek Farm; Parker repaired to the lands and proceeded to carry on operations, plowing, seeding, buying machinery and otherwise going forward with the work; payments for current expense were made by check in the name of the Confederate Creek Farm, by Parker as manager; on two occasions Edwards at Parker’s request participated in the conduct of the concern — at one time buying seed potatoes, and at another buying a packer.
(d) On July 24, 1912, Bruce and Parker ordered from the respondent a tractor, agreeing in the name of the Confederate Creek Farm to pay for it; the tractor was sent, tried and retained, but not paid for; the development of the property did not prove a success, and neither Bruce nor Parker returned to the premises after December 19, 1912.
Concerning the actions of Edwards to aid the enterprise after it was launched, the evidence is conflicting; but if he did what the respondent asserts, the actions in themselves were colorless, and their significance depends upon the agreements which it is supposed they were designed to forward. The weakness of his case consists in the absence of any definite declaration that he had no intention to form a partnership; but he shows enough to present that attitude; he denies knowledge of the use of the name Confederate Creek Farm to describe any partnership or account; he supposed that when the papers were signed and the moneys procured, that was all he had to do with the matter, and he never went upon the premises which, as he claims, Bruce and Parker were to farm and develop. On the whole evidence, therefore, we feel compelled to say that the question of partnership was for the jury.
2. Nor, in our opinion, was the evidence touching the sale of the tractor such as to command a directed verdict; for the effect of the ruling was to exclude failure of consideration and breaches of warranty from the case. It can be justified— assuming the partnership — only upon the view that failure of
The order appealed from is reversed and the cause is remanded for a new trial.
Reversed and remanded.