Beall v. Poole

• Decision Date: 23 July 1867
• Citation: 27 Md. 645
• Parties: NELSON BEALL AND GEORGE W. MCCULLOUGH v. ROBERT POOLE, GORMAN H. HUNT AND THOMAS H. SMITH, trading as POOLE & HUNT. ROBERT POOLE, GORMAN H. HUNT AND THOMAS H. SMITH, trading as POOLE & HUNT, v. NELSON BEALL, GEORGE W. MCCULLOUGH, JOHN HOWARTH AND GEORGE HUTTON, trading as HOWARTH & HUTTON.
• Court: Maryland Court of Appeals

27 Md. 645

NELSON BEALL AND GEORGE W. MCCULLOUGH v. ROBERT POOLE, GORMAN H. HUNT AND THOMAS H. SMITH, trading as POOLE & HUNT.

ROBERT POOLE, GORMAN H. HUNT AND THOMAS H. SMITH, trading as POOLE & HUNT, v. NELSON BEALL, GEORGE W. MCCULLOUGH, JOHN HOWARTH AND GEORGE HUTTON, trading as HOWARTH & HUTTON.

Court of Appeals of Maryland

July 23, 1867

CROSS APPEALS from the Circuit Court for Allegany County.

The facts of the case, together with the numerous exceptions taken at the trial below, are sufficiently disclosed in the opinion of the Court.

The cause was argued before BOWIE, C.J., BARTOL, WEISEL and CRAIN, J.

Thomas J. McKaig and Thomas J. McKaig, Jr., for Beall, McCullough Howarth and Hutton.

This action was instituted by Poole & Hunt to recover the sum of $2,052.63, the amount of a bill of goods, wares and merchandise, furnished the firm of Howarth & Hutton, at that time operating a coal oil factory at or near Tunnelton, West Virginia. And it is claimed by the firm of Poole & Hunt, that George W. McCullough and Nelson Beall were also, at the time the said wares were contracted for and furnished, partners in the firm of Howarth & Hutton. The right of Poole & Hunt therefore, to recover in this action, hinges on the establishment of this fact, which is traversed by Beall & McCullough, who severed in their defence and filed a separate plea to the declaration. All the evidence in the cause indisputably fixes the time at which the said wares and merchandise were ordered and contracted for, to have been prior to the first day of November, 1859, and were ordered on the credit and for the account of Howarth & Hutton. It is maintained on the part of Beall & McCullough, that the articles of co-partnership between Howarth, Hutton, and themselves, executed the 17th day of November, 1859, one month subsequent to the time the last portion of the work was ordered, is the only evidence adduced upon the part of the plaintiffs, entitled to be considered in any manner proper and legal evidence, to establish this pretended partnership on the part of Beall & McCullough. And that as this contract was made prior to the entrance of Beall & McCullough into the firm, and as there is not a scintilla of evidence in the cause to establish any novatio debiti, Poole & Hunt cannot recover in this action. Story on Partnership sec. 153. The unsigned articles of agreement, dated September 29th, 1859, were assuredly inadmissible as evidence to establish a partnership. Even if they had been signed, no partnership would thereby have been constituted until the agreement was carried out. Collyer on Partnership B. 5, ch. 1, sec. 2, p. 735 to 743; Bourne vs. Freeth, 9 Barn. & Cress., 632. The Court below ruled improperly in granting the plaintiffs' first prayer, because it omits the fact absolutely necessary to a recovery upon the part of the plaintiffs, and which is traversed by the defendants, viz: that the partnership alleged existed at the time the goods were ordered and contracted for. Young et al. vs. Hunter et al., 4 Taunt., 583. The second and third prayers of the plaintiffs, as propositions of law, are so grossly defective, that it is difficult to imagine how the Court below could seriously entertain them for a moment, much less grant them. A partnership is a contract, having attached to it the ordinary incidents and attributes of contracts, and must be so proved. Story on Partnership, sec. 6. A community of interest in the property, and a community of interest in the profits, are the necessary ingredients to constitute a partnership, and when neither of these, or only one without the other exists, no partnership can be established. 2 Greenl. on Ev., sec., 482; Story on Part., sec. 30. The Court below erred in attaching the modification, it did, to the defendants' first prayer, simply because there was no evidence upon which to base said modification, and it was therefore calculated to mislead the jury. The rejection of the defendants' second prayer was also erroneous. Story on Part., sec. 153. The defendants' third prayer should have been granted, there being no evidence whatever in the cause to establish any novatio debiti upon the part of Beall & McCullough. The defendants below, therefore respectfully ask a reversal of the judgment in this case, and as the plaintiffs have signally failed by any legal or sufficient evidence in establishing a partnership as to Beall and McCullough, at the time the goods were ordered and contracted for, that no procedendo be awarded in the case.

J. H. Gordon and William Walsh, for Poole & Hunt.

The books say that letters, memoranda, &c., showing an intention to give a person a share of the profits, coupled with proof that the intention was acted on, or of interference of one in the business of the other, are proper proofs of partnership. Collyer on Part., sec. 769, and note 2; Heyhoe vs. Burge, 67 Eng. Com. Law Rep., 431; Nicholls vs. Dowding, 1 Stark. Rep., 81. In an action against four as partners, they must all be partners, or no recovery can be had. The confession of judgment by Hutton did not dispense with the necessity of proving, as against the other three, that he was a partner. And even if the confession of judgment was sufficient, Poole & Hunt had a right to offer all the additional testimony they had, to prove that point; all the bills and receipts were in Hutton's handwriting, and were clearly evidence, as his acts, to establish the fact that he was a member of the firm. The modification of the defendants' first prayer is in the very words of the law as laid down in Story on Partnership, and the articles of partnership, dated 17th of November, 1859, contained an express assumption of all pre-existing indebtedness. The defendants' second and third prayers were properly rejected. The incoming partner has the benefits of the purchases and contracts of the old firm, and slight circumstances will authorize the jury to find an adoption of previous contracts by him. Collyer on Part., sec. 522; Story on Part., secs. 152 153; Exparte Peele, 6 Vesey, 602; Vere et al. vs. Ashby et al., 10 Barn. & Cress., 288. There need not be a novation; a novation is where there is no consideration for the promise to pay the debt, but the extinguishment of it against the original debtor. The new partner taking the benefit of the previous contracts, adopts them and makes the original partner his agent ab initio. Hobey vs. Roebuck, 2 Marsh, 434; Helsby et al. vs. Mears et al., 5 Barn. & Cress., 504. Moreover, there was no contract made by Hutton and Howarth, for any specific goods, and the property only passed portion by portion, and the liability accrued on the implied assumpsit from receiving the goods. Woods vs. Russell, 5 Barn. & Adol., 942.

WEISEL J., delivered the opinion of this Court.

The appellants, with John Howarth and George Hutton, were jointly sued in the Circuit Court for Allegany County, and declared against as partners under the name and style of Howarth & Hutton, for money payable, goods sold and delivered, money paid, money lent, and work done and materials found. The appellees, plaintiffs below, were partners under the name of Poole & Hunt and they so declared. No time was alleged in the declaration, and the suit was instituted on the 3d of April, 1860. The defendants had all been returned ""summoned," and all appeared by attorneys, except Howarth, whose personal appearance was entered by order of Court. After continuances, Hutton suffered judgment against him, and afterwards and upon trial, a verdict was rendered in favor of the defendants, which, upon motion, was set aside and a new trial granted, on the ground of the repugnancy of the verdict to the judgment confessed by Hutton, the defendants having been sued and declared against jointly. On the new trial Beall & McCullough, two of the defendants, had leave to amend the plea, and each pleaded that he was never indebted as alleged, on which issue was joined. The trial proceeded and the defence was conducted by said Beall & McCullough, who resisted the efforts made by the plaintiffs to fasten upon them responsibility as co-partners with Howarth & Hutton, for the articles in the account produced in evidence and sought to be recovered. Whatever irregularities may appear in the proceedings, no question arose upon them. The whole controversy was as to the liability of the two defendants, Beall & McCullough, or either of them, in the action. The verdict and judgment were for the plaintiffs, and this appeal has been prosecuted by the said Beall & McCullough from the various rulings against them, embraced in the twelve exceptions taken by them in the record.

The first exception was abandoned in the argument.

The plaintiffs offered the two letters in the second exception, with a statement to the Court that they would give in evidence, in connexion therewith, articles of agreement showing a partnership among all the defendants in the cause, and that it existed among them all prior to the 8th day of September, 1859. The Court, upon this promise, allowed the letters to go before the jury, and not upon the ground that they were evidence in themselves of the partnership. The defendants could afterwards, if the connexion with the other proof of partnership to be adduced failed, move the Court to withdraw the letters, and then take their exception to the action of the Court if refused. The Court committed no error in allowing the letters to be read when offered in the manner proposed.

Articles of co-partnership made the 17th November, 1859, with other proof, having been offered by the plaintiffs and gone in they then further offered the paper in the third exception, dated September 29, 1859, and admitted to be in the handwriting of the defendant Beall. It is complete...