64 W. Va. 379 | W. Va. | 1908
This is a suit in equity brought by W. W. Townley, L. L. Townley, J. J. Townley, W. I). Townley and E. R. Townley, partner's doing business under the firm name of Townley Brothers, against J. W. Crickenberger and some twenty others in the circuit court of Greenbrier county.
In March, 1903, a store known as “The Racket” was started in Lewisburg, Greenbrier county, doing a general merchandise business with J. W. Crickenberger as manager. Townley Brothers were doing a general merchandise business in Ronceverte, said county. Previous to the opening of the Racket the following contract was entered into and signed by Townley Brothers and J. W. Crickenberger for the Racket:
‘This Memorandum Contract made and entered into this the 18th day of March 1903, Between J-. W. Crickenberger and N. W. Russell copartners of Lewisburg, W. Va., to do business under the firms name ‘The Racket’ of the one part and Townley Bros, of Ronceverte, W. Va., of the other part.
. “WITNESSETH, Thatforandin consideration that J. W. Crickenberger and N. W. Russell of the one part does put into the business in merchandise and Cash $300 to $500,—
“The said Townley Bros, has agreed to furnish them goods to sell. The entire stock contained in house of said business*381 is owned by Townley Bros, until settlement is made, which must be weekly. Should settlement not be made on goods each week what they might have belonging to the said Town-ley Bros, and is to be sold by them. All goods are to be sold for cash only by them J. W. Crickenberger and N.'W. Russell. The said Townley Bros, are to have half profits made on goods furnished by them, and there is to be no expense on Townley Bros, in no way.
‘Given under our hands & seals.
“J. W. Crickenberger, (Seal.)
“for The Racket, (Seal.)
“Townley Bros, (Seal.)”
The Racket did not prove successful and by September, 1903, had become deeply involved, owing the said Townley Bros- over $2,000; and by deed of assignment, dated October 6, 1903, the entire stock of goods and merchandise of every character, including the lumber and timber and the book accounts, were sold to the said Townley Bros. According to the said deed of assignment Townley Bros, were to pay sixty-seven and one-half cents on the one dollar valuation of the goods, &c., and fifteen cents on the one dollar valuation of the book accounts and it was expressly provided that Town-ley Bros, assumed no part of the indebtedness of the Racket.
Within a short time after the execution of the last mentioned deed of assignment, numerous creditors .of the Racket brought suit against Townley Bros, and J. W. Crickenber-ger, some suing Townley Bros, as owners of, and some as partners in, the Racket. Most of the suits were instituted before a justice and judgments were rendered against Town-ley Bros, and appeals taken. Others brought suit in the circuit court.
Townley Bros, filed their bill of complaint in the circuit court of Greenbrier county, January 16, 1904; making the creditors of the Racket parties defendant. The bill alleged that in March, 1903, the Racket Store was started in Lewis-burg with J. W. Crickenberger as manager; that said Cricken-berger applied to plaintiffs to sell him goods for the Racket Store and that plaintiffs did from time to time sell said Cricken-berger goods; that for a time said Crickenberger made payments to plaintiffs, but plaintiffs soon found that said Crick-
On the 14th day of March, 1904, the plaintiffs filed an amended bill making the original bill a part thereof, making new parties defendants; alleging that the remedy of the defendants if Iona fide creditors of the Racket Store was by bill in equity to have the court declare plaintiff’s purchase a preference under the statute, if such preference was made to appear, and to require plaintiffs to account for the value of said stock of goods so that the same might be prorated among the creditors of said Racket Store; and praying for the same relief, and for a discovery of the real persons interested and connected with said Crickenberger and Russell in said Racket Store; and after consideration, on March 17, 1904, it
On December 23, 1904, the parties appeared and the defendants by leave of court withdrew their demurrer to the bill and the cause came on to be heard on the bill and exhibits, the answer of the various defendants and general replication to same, and by consent of all parties the cause was referred to F. M. Arbuckle, Commissioner, with instructions to take, state and report an account showing:
“1. Who constituted the firm called the Racket?
“2. Who owned the Racket?
“3. Did Townley Bros, hold themselves out to the public as owners or partners in the Racket?
“4. The debts against the Racket and who are bound therefor.
“5. Any other matter to be specially stated by the Com. missioner deemed pertinent, or required by any party in interest.”
Said Commissioner Arbuckle resigned as commissioner and by order of the court, February 16, 1905, Stuart M. Wood, a commissioner of the court, was directed to get the papers in these causes and to execute the said order of reference. The commissioner Wood filed his report February 7, 1906, and the cause came on to be heard upon the former papers, the report of the commissioner, and the exceptions of the plaintiffs and the defendants to the same; and without passing on the merits of the exceptions, the report was recommitted to the same commissioner to reply to the said exceptions. The said commissioner made his final report March 20, 1906, and on August 28, 1906, the cause came on to be finally heard when the court held Townley Bros, liable for the debts of the Racket as partners in the business of the Racket with J. W. Crickenberger; the exceptions of Townley Bros, to the report of the commissioners were overruled, and the exceptions of C. A. Bryant and C. A. Crickenberger to
The defendants, having withdrawn their demurrer, waived the same and by consent of all the parties to the cause their rights were submitted to a commissioner of the court for adjustment. The commissioner proceeded to take depositions and reported his conclusions thereon to the court. It is contended by appellants that all the defendants did not answer, that all excepting those who filed verified answers are precluded from making defense under section 3862, Code 1906, (section 42 chapter 125,) and the bills stand for confessed as to them. If any of the defendants failed to file their answers, the consent' order of December 23, 1904, referring all the matters to commissioner Arbuckle waived all defects and formalities in pleading, and submitted the questions in issue between the parties to be reported to the court by the commissioner. Under the said order of reference as well as under the prayers of the bill and amended bill it was competent for any of the parties to the suit having claims against the Racket Store to lay them before the commissioner with their proof to establish the same. There seems to have been a full and complete hearing before the commissioner of the case on its merits as to each and every claim presented by the defendants. Exceptions were taken by the plaintiffs to the report of the commissioner as to the admission of improper evidence, which evidence was all reported to the court and it appears from the record that there was ample evidence which was admissible to establish the correctness of the claims allowed.
■ Did there exist such relation between the appellants Townley Bros, and “The Racket” as to make the former liable for the debts of the latter? Whether the contract of March 18, 1903, can be construed to be a contract of partnership as between the parties, does it not constitute the appellants partners in respect to strangers-creditors? “A partnership in respect to strangers exists, it is believed, in all cases where there is a partnership agreed on between the parties, and also, by the policy of the law, in many cases where such agreement is negatived. Thus, wherever there
“Stronger'evidence of the existence of the partnership is required between partners than by third persons. ” — Hinkson v. Ervin, 40 W. Va. 111; Robinson v. Green, 5 Har. (Del.) 115.
Under the contract of March 18, 1903, Townley Bros, were not only - to share in the profits, receiving one-half thereof made on the goods furnished by them to the store, but it was further provided that settlements should be made with appellants weekly, and that “the entire stock contained in house of said business is owned by Townley Bros, until such settlement is made which must be weekly.” The community of interest, the sharing of profits and ownership of appellants are all shown by the terms of the said contract. The intention of the parties is gathered from the words used in the contract. Setzer v. Beale, 19 W. Va. 274. As said in the opinion of the last cited case, at page 287: ‘ ‘A partnership, so far as third parties, creditors for example, are concerned, may exist without any contract between the parties forming the partnership and contrary to the intention of the parties.”
The appellants deny having had any interest in the Racket Store, and deny telling anyone that they had, but the evidence is overwhelming that W. W. Townley, who was the general manager of the concern of Townley Bros, at Ronce-verte, told various persons that they were the owners of the Racket. Some ten or twelve witnesses testifying to the fact. And there is evidence of several witnesses of dealings with Townley Bros, in carrying out contracts made by the other parties with the Racket, showing "that they regarded the contracts made with the Racket as their own contracts. J. W. Dwyer, Cashier of Bank of Greenbrier, says W. W. Town-
The matters referred to the commissioner to report upon were questions of fact dependent upon quite a large mass of contradictory, parol testimony. In such cases, as held in Boyd & Co. v. Gunnison & Co., 14 W. Va. 1; Graham v. Graham, 21 Id. 698; Handy v. Scott, 26 Id. 710; and many others, where questions purely of fact are referred to a commissioner to be reported upon, the finding of the commissioner, while not as conclusive as the verdict of a jury, will be given great weight and should be sustained, unless it plainly appears that they are not warranted by any reasonable view of the evidence. This rule operates with peculiar force in an appellate court, when the findings of a com missioner have been approved and sustained by the lower court. It is well shown that Townley Bros, held themselves out as owners of the Racket, or claimed to own it and thus made themselves liable for its debts, and the circuit court did not err in so holding.
Appellants* say the court erred in sustaining the exceptions of O. A. Bryant and 0. A. Crickenberger respectively to-the commissioner’s report in rejecting their claims and in decreeing the same against the plaintiffs. The claim of Bryant is itemized showing an aggregate of $252.51 which he swears positively is just and correct, then admits the account of the Racket against him of $143.00 as a just offset; and his own testimony is corroborated to a large extent by other witnesses. The claim of O. A. Crickenberger seems to be well established and we cannot say'that the court erred in sustaining these exceptions to the report and decreeing the payment of their claims,
In addition to the assignments of error in the petition for appeal, appellants assign as error matter de-hors the record
There appears to be no reversible error in the decree and the same is affirmed.
Affi//'ined.