221 P. 130 (Idaho 1923), Boise Payette Lumber Co. v. Sarret

Citation221 P. 130, 38 Idaho 278
Opinion JudgeWM. E. LEE, J.
Party NameBOISE PAYETTE LUMBER COMPANY, a Corporation, Respondent, v. JULES SARRET and J. M. STEVENS, Doing Business as a Copartnership Under the Firm Name and Style of SARRET & STEVENS, Appellants
AttorneyD. D. Mote, for Appellant J. M. Stevens. John W. Jones and Guy Stevens, for Respondent.
Judge PanelWM. E. LEE, J. McCarthy and Dunn, JJ., concur. McCarthy and Dunn, JJ., concur.
Case DateNovember 14, 1923
CourtSupreme Court of Idaho

Page 130

221 P. 130 (Idaho 1923)

38 Idaho 278

BOISE PAYETTE LUMBER COMPANY, a Corporation, Respondent,

v.

JULES SARRET and J. M. STEVENS, Doing Business as a Copartnership Under the Firm Name and Style of SARRET & STEVENS, Appellants

Supreme Court of Idaho

November 14, 1923

PARTNERSHIP-IMPLIED AGENCY - EVIDENCE - DECLARATIONS OF PARTNER-SCOPE OF PARTNERSHIP BUSINESS-QUESTION OF FACT-PURCHASES BY PARTNER-TESTIMONY OF GENERAL CUSTOM.

1. A partner is an agent of the firm in all matters within the scope of the partnership business.

2. When a partnership is admitted, the admissions or declarations of a partner relating to matters within the scope of the partnership business are admissible against the firm.

3. What is within the scope of a partnership business is generally a question of fact.

4. In order to determine whether purchases made by a partner were within the scope of the partnership business, testimony that such articles are ordinarily and usually purchased by persons engaged in such business, for use in connection therewith, is admissible.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Action against partnership for purchase price of merchandise sold to partner in firm name. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

D. D. Mote, for Appellant J. M. Stevens.

It is necessary to prove the existence of a partnership before conversations or admissions of one partner, in the absence of other partners, are binding. (Willoughby v. Hildreth, 182 Mo.App. 80, 167 S.W. 639; First Nat. Bank v. Leland, 122 Ala. 289, 25 So. 195; Smith v. Ferrario, 113 Ga. 872, 39 S.E. 428; Gardner v. Northwestern Mfg. Co., 52 Ill. 367; Smith v. Southern R. Co., 89 S.C. 415, 71 S.E. 989; 20 R. C. L. 848; Vanderhurst v. DeWitt, 95 Cal. 57, 30 P. 94, 20 L. R. A. 595; Lewin v. Barry, 15 Colo. App. 461, 63 P. 121; Union Nat. Bank v. Underhill, 102 N.Y. 336, 7 N.E. 293; 30 Cyc. 409, 523.)

In the case of a nontrading partnership, the burden of showing agency is said to be on the one who seeks to hold the partnership, and he should show either express authority, that the contract concerned something necessary to the business, or that usually in such partnerships a partner has such authority. (1 Rowley, Modern Law of Partnership, p. 488; 30 Cyc. 587, 588.)

It is for the jury to determine whether the merchandise furnished was such as is ordinarily used in the sheep business rather than to permit a witness to state his conclusion, especially where it is not a matter for expert testimony. (Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L. R. A., N. S., 1106; Columbia Valley Trust Co. v. Smith, 56 Ore. 6, 107 P. 465.)

John W. Jones and Guy Stevens, for Respondent.

The partnership's existence being admitted, the conversations and admissions of Sarret to Royce, the manager of the plaintiff, concerning the transaction were admissible. (Franklin v. Hoadley, 126 A.D. 687, 111 N.Y.S. 300; Willoughby...

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