Active Market, Inc. v. Leighton

Citation200 A. 822,124 Conn. 500
CourtSupreme Court of Connecticut
Decision Date12 July 1938
PartiesACTIVE MARKET, Inc., v. LEIGHTON et al.

Appeal from Superior Court, Fairfield County; John R. Booth, Judge.

Action by the Active Market, Incorporated against Hugh C. Leighton Sr., Hugh G. Leighton, Jr., and another to recover the price of goods sold and delivered. The case was tried to the court. Judgment for plaintiff, and named defendants appeal.

No error.

C. Driscoll Grimes, of Greenwich, for appellants.

John R. Cuneo and Frederick Lovejoy, Jr., both of South Norwalk for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

HINMAN, Judge.

The writ named as defendants Hugh C. Leighton, Sr., and Hugh G. Leighton, Jr., both of Darien, Connecticut, and the Leighton Baking and Restaurant Corporation, a New York corporation. The complaint was the common counts, and the bill of particulars set forth the items of goods (meats) alleged to have been sold and delivered to the defendants. The individual defendants pleaded a general denial; the corporation was defaulted for failure to plead. After trial of the case the court entered judgment for the plaintiff against all of the defendants. In response to a motion by the defendants Leighton the trial court filed a special finding of facts upon which the judgment was predicated. This embodied facts as to the situation and relations of the defendants and their transactions with the plaintiff, more fully stated in the finding on appeal hereinafter summarized, from which the court reached and stated conclusions that each of the three defendants acted as principal and as agent for the other two and that, therefore, a partnership existed between them.

The first contention of the appealing defendants is that the complaint is not sufficient to support the judgment because it contains no allegation of partnership or of operative facts constituting a partnership. So far as concerns the failure to expressly name and designate the defendants as partners or allege the existence of a partnership between them, a decisive answer is afforded by Hotchkiss v. De Vita, 103 Conn. 436, 446, 130 A. 668. Here, as in that case, the defendants were all in court, they were apprised that all were claimed to be liable, and what the controversy was about and, so far as appears, they were, or at least should have been ‘ as well prepared to make any proper defense as if it had been in terms alleged that they were partners.’ (Page 671.) While it was not alleged here, as it was by amendment in the Hotchkiss Case, that one was the agent for the others or, as was the claim here, that each was the agent for the others, it appears from the draft-finding and finding as well as from the evidence, which we have been required to examine as to claimed corrections of the finding, that the principal controversy upon the trial was as to the circumstances relating to the ordering and delivery of the merchandise by and to the several defendants and the use made thereof, obviously bearing upon the representation of the other defendants by the individuals and the agents of the corporate defendant, and directed to the issue of agency of each for the others. Moreover, the omission to allege agency was one which readily could be cured by amendment, as it was in the Hotchkiss Case, had objection been interposed; therefore it was an instance where the defendant ought to be held to make the objection seasonably, so that there might be such an amendment, and the parties might reach and settle their controversy upon its merits; and, if the defendant postpones his objection till judgment has been rendered, he must not be allowed to gain any advantage on that account. Santo v. Maynard, 57 Conn. 157, 161, 17 A. 700. The proper way to take advantage of the rule of pleading which requires that an act done by a known agent * * * should be so stated [Practice Book, § 118, p. 50], is to object to evidence that it was so done unless it is so alleged. Irwin v. Judge, 81 Conn. 492, 71 A. 572.’ Woodruff v. Perrotti, 99 Conn. 639, 644, 122 A. 452, 453. Such a case is quite different in principle from those relied on by the defendant, as where judgment is founded upon a ground outside the scope of the case as pleaded. Modern Home Utilities, Inc., v. Garrity, 121 Conn. 651, 654, 186 A. 639, Greenthal v. Lincoln, Seyms & Co., 67 Conn. 372, 35 A. 266; Whiting v. Koepke, 71 Conn. 77, 40 A. 1053; New Idea Pattern Co. v. Whelan, 75 Conn. 455, 53 A. 953; Kane v. Kane, 120 Conn. 184, 189, 180 A. 308. Here, to hold all of the defendants liable is but to give legal effect to the transaction which is generally stated in the complaint and bill of particulars.

The claim that the special finding does not support the judgment against the defendants as partners depends upon a contention that a relation of principal and agent of each defendant to the others is not sufficient to hold them liable as partners but that it must appear that there was a sharing, between them, of profits, or at least an agreement, express or implied, for such a distribution. The place, effect and weight of participation in profits in determining as to the existence of a partnership relation has been under consideration in a multitude of cases, as is indicated by the note 18 L.R.A.N.S., 963 et seq., and with variant and sometimes irreconcilable results. 20 R.C.L., 823. It suffices for the present purposes that the practical concensus of modern authority is that, important as is profit-sharing, when it is found...

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1 cases
  • Active Market, Inc. v. Leighton
    • United States
    • Connecticut Supreme Court
    • 12 d2 Julho d2 1938
    ... 200 A. 822124 Conn. 500 ACTIVE MARKET, Inc., v. LEIGHTON et al. Supreme Court of Errors of Connecticut. July 12, 1938. Appeal from Superior Court, Fairfield County; John R. Booth, Judge. Action by the Active Market, Incorporated against Hugh C. Leighton, Sr., Hugh G. Leighton, Jr., and ano......

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