45 Miss. 48 | Miss. | 1871
In December, 1864, Toof, Phillips & Co., and Alexander Frazier, residents of Memphis, Tenn., entered into a written agreement, beginning thus: “This article of agreement
In December, 1864, or January, 1865, Frazier being in Washington county, Miss., on a trading expedition under the foregoing contract, J. J. Duncan, a resident of Green-ville, in that county, the plaintiff in this action, “asked him (Frazier) to take up a draft on Campbell, Norville & Co., to Memphis, and collect for me (Duncan), and bring the money down.”
Frazier, being sick and unable to attend to the collection of this draft, indorsed it, payable to Toof, Phillips & Cirode, and, at the request of Frazier, one of the firm of Toof, Phillips & Co., collected thereon of Campbell, Nor-ville & Shepherd, $1,492 50, which sum was placed to the credit of Frazier on the books of Toof, Phillips & Co., and by Frazier subsequently withdrawn from deposit. Frazier failing to pay the money to Duncan, the latter, in August, 1865, sued Frazier to recover the amount, but withdrew the suit, and in 1867 brought this action against Toof, Phillips & Co., commencing by attachment, against Toof, Phillips & Cirode, as composing the firm of Toof, Phillips & Co., seeking to charge them with the payment of the sum collected of Campbell, Norville & Shepherd. The record is somewhat confused. The following papers appear in the order named:
1. Affidavit of Duncan for attachment against Toof, Phillips & Cirode, under date of November 2, 1867.
2. Bond for attachment against same parties.
3. Attachment against same parties, and sheriff’s return of service upon debtors of Toof, Phillips & Co.
4. Declaration in circuit court of Washington county, May term, 1868, against Toof, Phillips, Cirode and Mahan, as partners in trade, under the firm name of Toof, Phillips & Cirode, alleging the draft on Campbell, Norville & Shepherd, and its payment to defendants “or to their partner, Alex. Frazier, who was authorized and empowered, as such partner, to receive payment of the same.” With the declaration is a bill of particulars of plaintiff’s claim, to wit i
*53 “Took, Phillips & Cibode,
To Jesse J. Duncan, Db.
1865. January. To amount of draft, drawn by me in yonr favor on the house of Campbell, Norville & Co., and by them paid yon............... $1,492 50. ”
5. May term, 1869, another declaration, not stated to be filed as an amended declaration, yet, in fact, varying from the former, in this, that it declares against Toof, Phillips, Cirode and Mahan, as partners, and omits all mention of Frazier. This declaration contains the usual money counts in assumpsit.
6. Plea, special plea, and replication between these parties in the courts of Memphis, 1865.
7. Washington county, Mississippi, circuit, May term, 1869 ; plea, special plea, and replication in this action.
8. November circuit, 1868, a general demurrer to the declaration.
9. May term, 1869, demurrer to the declaration, on the ground that the declaration states Frazier to be a partner in the firm of Toof, Phillips & Co., yet he is not made a party to the suit.
10. An agreement of counsel to read depositions taken in a suit in Tennessee between these parties for the recovery of the same money claimed herein.
11. May term, 1869. Proceedings on the trial in Washington county.
It will be seen that the parties went to trial with the demurrer undisposed of as far as the record shows, the issue being made up and the demurrer filed, and a trial had at the same term of the court.
Our conclusion from the record is, that the demurrer, if not disposed of by the court, was waived by the parties. It, at least, deserves no consideration in this case.
Upon the trial the first witness sworn was the plaintiff in the action, who testified that in the fall of 1864 he was at the
The testimony of several witnesses was then submitted to the jury, by deposition, or in person, in order to establish a general partnership between Toof, Phillips & Co. and Frazier. This proof consisted of the acts and declarations of Frazier in Washington county, mainly in reporting that he was interested in the best house in Memphis. No proof appears showing that Toof, Phillips & Co. held out Frazier as their partner, or that his acts or declarations were ever brought to their knowledge. In fact, the evidence not only fails to show Frazier a general partner of Toof, Phillips & Co., but establishes conclusively that their transactions were confined to and limited by the written agreement between them. It
The instructions of the court to the jury, for the plaintiff, are not given in the record.
The instructions asked by defendants were modified by the court, to which they excepted. The jury rendered a verdict for plaintiff, for $1,492 50, and judgment was entered against Toof, Phillips, Cirode and Mahan.
The defendants asked to have a new trial, on the following grounds: 1. Because the court erred in giving instructions asked by plaintiff; 2. Because the court erred in refusing the first instruction asked by defendants, and. in modifying the others asked by them; 3. Because the court erred in permitting the written agreement between Frazier and defendants to be admitted as evidence; 4. The jury found contrary to the evidence ; 5. The jury found contrary to the instructions of the court; and, 6. For other causes to be stated on the argument. The defendants’ attorney also submitted an affidavit of surprise on the trial, by the introduction of the written agreement aforesaid.
The motion for a new trial was overruled, and defendants excepted, whereupon they prosecuted a writ of error, and the following causes are assigned here for a reversal of the judgment and verdict: 1. The court erred in overruling the demurrers to the declarations; 2. Neither the declaration nor amended declaration make Alexander Frazier a party, and no recovery could be had against a firm of which he was a member, for obligations incurred by him, without making him a party ; 3. The verdict of the jury is contrary to the evidence; 4. The evidence shows that the verdict should have been for defendants below ; 5. The court erred in permitting the introduction of the written contract or agreement between plaintiffs in error and Frazier, as evidence
Our view of this case renders it wholly unnecessary to discuss but a single point, and that quite briefly. The written agreement between defendants and Frazier, which plaintiff saw, or might have seen, limited their transactions to a single article of merchandise, for the period of three months. While it was to a certain extent a partnership, it was, nevertheless, only an “adventure.” Such an. enterprise, though a partnership, gives to the respective partners no such ample powers to bind the firm as in cases of permanent and general mercantile transactions. In this case there was no power to borrow money, and it could not be implied, except in a case of clear emergency, and in the direct and proper conduct of the enterprise. No such necessity is presented. In fact no occasion whatever for borrowing money is shown.
Neither does the contract permit of any transactions outside of the special adventure, and one of the.partners could not bind the firm except in the legitimate prosecution of the enterprise and necessary to its success.
In the case at bar, Duncan swears he “loaned the money on the credit of the firm of Toof, Phillips & Co.,” but in fact he gave the check or draft on his merchant for money payable to the order of Frazier, and not to Toof, Phillips & Co., which Frazier was to collect and “bring down ” to the plaintiff. Had the latter taken the precaution to have drawn the draft payable to the order of Toof, Phillips & Co., it might have changed the whole aspect of the case. But he dealt with Frazier alone; he made the draft payable to Frazier’s order, and the latter was to collect and bring the money to Duncan. We regard the former as the mere agent of the latter in a mere accommodation transaction, outside of, and wholly unauthorized by, the agreement between Frazier and
The judgment is reversed and the cause remanded.