Adkins v. Hash

• Decision Date: 21 November 1949
• Citation: 190 Va. 86,56 S.E.2d 60
• Parties: ADKINS et al. v. HASH et al.
• Court: Virginia Supreme Court

56 S.E.2d 60

190 Va. 86

ADKINS et al.

v.HASH et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1949.

Action by W. J. Adkins and another, trading, etc., against G. L. Hash and another, trading as the Hash Furniture Company, to recover the purchase price of merchandise sold by plaintiffs to defendant's manager under belief that sale was made to a partnership composed of the defendants.

The Circuit Court of Giles County, Vincent L. Sexton, Jr., J., rendered judgment for defendants, and the plaintiffs brought error.

The Supreme Court of Appeals, Hudgins, C. J., reversed the judgment and entered final judgment for plaintiffs, holding that plaintiffs, on establishing that partnership once existed, were entitled to presumption that partnership continued to exist until the contrary was proven, and that defendants failed to prove the contrary.

Before HUDGINS, C. J., and EGGLESTON, BUCHANAN, STAPLES and MILLER, JJ.

Samuel A. Martin, W. B. Snidow, Pearisburg, for plaintiffs in error.

Oppie L. Hedrick, Beckley, W. Va., J. Livingstone Dillow, Narrows, for defendants in error.

HUDGINS, Chief Justice.

The only question presented by this record is, whether two non-residents, who for several years, had conducted a business as a partnership in Pearisburg, Virginia, can escape liability for a debt contracted by the manager of the business by merely proving that at the time the debt was contracted, the partners had obtained a corporate charter in West Virginia to conduct the same business in Virginia.

There is no substantial conflict in the evidence. G. L. and Rose Mary Hash were residents of Beckley, West Virginia. For seven or eight years prior to April, 1946, they, as partners, had conducted a furniture business in Pearisburg, Virginia, under the firm name of "Hash Furniture Company." During this period D. B. Webster was manager and in complete charge of this business. There was a large sign across the front of the store reading "Hash Furniture Company." On both sides of a truck used by Webster in the business was painted, in large letters, the name "Hash Furniture Company."

Plaintiffs, W. J. Adkins, R. L. Clark and I. H. Vassar, Jr., partners, trading as Eastern Electric Company, of Lynchburg, wholesale dealers in electrical supplies, through their salesman, received from D. B. Webster as manager of defendants' business, twenty-three orders for merchandise on various dates from August, 1946, to March, 1947. On receipt of the first of these orders, plaintiffs, upon investigation, ascertained that the Hash Furniture Company was an established concern of long standing, and a good credit risk. This investigation led them to believe that the Hash Furniture Company was a partnership, with the partners residing in Beckley, West Virginia. Relying upon this information, the merchandise, as directed, was shipped from time to time to the Hash Furniture Company, Pearisburg, Virginia. The purchase price of seventeen shipments was promptly paid, some by personal checks of D. B. Webster. While the manager acknowledged receipt of the last six items on the account, the purchase price amounting to $510.92 was not paid.

Webster testified that he, as manager, in the regular course of business, bought the merchandise from the plaintiffs in the name of the Hash Furniture Company "and every item of it went into defendant's store, " at Pearisburg. He used his personal checks to pay plaintiffs for the merchandise shipped, but he made no reports of these transactions to the home office of defendant company. These facts were not known to plaintiffs.

Webster also testified that when he commenced to work for the Hash Furniture Company, it was a partnership, composed of G. L. and Rose Mary Hash. In August, 1946, another employee of defendants told him that the business was incorporated. He was not notified by the corporation that it had taken over the partnership business. There was no change made in his employment or the duties he was required to perform. There was no change in the location of the business, the name, or the method of conducting same.

G. L. Hash, one of defendants, testified that he and his wife resided at Beckley, West Virginia, and that for a number of years they, as partners, had engaged in the furniture business in West Virginia and Virginia. Webster was the manager of their store in Pearisburg, Virginia, and the business was conducted as a partnership, under the name of "Hash Furniture Company." The retail merchant's license for the conduct of the business was issued on January 1, 1946, to G. L. and Rose Mary Hash, of Beckley, West Virginia, trading as "Hash Furniture Company." Webster had no authority to buy merchandise in Pearisburg, as all purchases were supposed to be made by defendants at their office in West Virginia.

This witness also testified that "on April 30, 1946, the business was incorporated under the laws of West Virginia, and there-after operated as a corporation." He filed with his testimony a certified copy of the Certificate of Incorporation, bearing date April 30, 1946,...