Burke Machinery Co. v. Copenhagen

• Citation: 6 P.2d 886,138 Or. 314
• Parties: BURKE MACH. CO. v. COPENHAGEN et al.
• Decision Date: 05 January 1932
• Court: Supreme Court of Oregon

6 P.2d 886

138 Or. 314

BURKE MACH. CO. v. COPENHAGEN et al.

Supreme Court of Oregon

January 5, 1932

Department 1.

Appeal from Circuit Court, Multnomah County; William A. Ekwall Judge.

Action by the Burke Machinery Company against Otto Copenhagen and another, doing business as Copenhagen Bros. From a judgment in favor of plaintiff, defendants appeal.

Affirmed.

This is an action upon an account. The cause was tried by the circuit judge without a jury. From a judgment in favor of the plaintiff, the defendants appealed.

Alfred P. Dobson, of Portland, for appellants.

Ralph B. Herzog, of Portland (Herzog, Fulop & Kenin, of Portland on the brief), for respondent.

ROSSMAN J.

The amended complaint, after alleging that the defendants were partners at the time when the transactions occurred out of which the alleged indebtedness arose, averred that between January 1, 1918, and November 1, 1928, the plaintiff sold to the defendants material, performed for them labor, and loaned to them sums of money, and that as a result of these transactions the defendants became indebted to the plaintiff in the sum of $11,424.75. The complaint, after crediting the defendants with the sum of $5,806.42 paid on account demanded judgment for the balance, $5,618.33. The answer after denying all of the above, alleged that between October 31, 1918, and January 13, 1923, "Copenhagen Bros. Co. was a corporation *** that all of said transactions resulting in said debits and credits set out in said bill of particulars, with the exception of certain of the items shown on sheet A-8, represented dealings or transactions between the plaintiff and Copenhagen Bros. Co., a corporation." The answer also alleged payment in full of all indebtedness incurred. The reply denied all of the new matter in the answer.

The findings of fact recited: "From a preponderance of the evidence in the above entitled case, it appears that the defendants herein were at all times mentioned in plaintiff's amended complaint a copartnership doing business under the name of Copenhagen Bros." The cause having been tried by the judge without a jury, this finding has the effect of a verdict (section 2-503, Oregon Code 1930), and cannot be disregarded, unless this court is of the opinion that the finding is not supported by any competent, substantial evidence. Carstens Packing Co. v. Gross, 131 Or. 580, 283 P. 20; Tracy v. Thun, 125 Or. 323, 267 P. 398; Warren v. Dinwoodie, 88 Or. 342, 171 P. 1175; Thompson v. Sargent, 66 Or. 384, 134 P. 7. The finding was being protected by the aforementioned rule, our duty is restricted to the task of determining whether it is supported by any competent, substantial evidence as distinguished from the task of weighing the evidence.

Practically all of the transactions between the parties occurred between October 31, 1918, and January 1, 1923. May 24, 1918, C. A. Hartley, C.J. Cooley, and B. Friedman filed with the corporation commissioner of this state articles of incorporation of a company entitled "Pacific Construction Company." Some time afterwards these defendants secured control of that corporation, and on November 21, 1919, filed with the corporation commissioner supplementary articles of incorporation whereby the name of that company was changed to Copenhagen Bros. Co. The defendant Henry Copenhagen conceded that prior to the time that he and the other defendant, Otto Copenhagen, took charge of the Pacific Construction Company, the two brothers were partners engaged in business under the firm name of Copenhagen Bros. Henry Copenhagen also testified that prior to 1918, while he and his brother were handling "one little logging job over in Vancouver, we had dealings" with the plaintiff, and that "we used to deal as a partnership" with the plaintiff. J. J. Burke, the president of the plaintiff, testified that the Burke Machinery Company had begun to do business with the defendants as partners before the creation of the entity entitled "Copenhagen Bros. Co." He testified that he had never heard of the Pacific Construction Company until Henry Copenhagen mentioned it as a witness in the present trial. In 1922 he saw some papers which contained the name, Copenhagen Bros. Co., and testified that, apart from the information therein conveyed, he had no knowledge whatever of the existence of that corporation. Henry Copenhagen testified: "I don't recall ever mentioning to them (the plaintiff) that we did incorporate." Burke testified that in all of the transactions mentioned in the complaint he looked to these two defendants for payment and believed they were partners. He testified that neither of the brothers told him in express language of their relationship as partners. We quote from his testimony: "I don't remember that they ever did come out and tell me so. I knew they were doing business as Copenhagen Bros. I knew they had been partners for many years. I had been in connection with them for a good many years, several years, wherein I knew they were." There was received in evidence a letter, dated July 25, 1992, addressed to the plaintiff, written upon stationery containing the printed letterhead, "Copenhagen Brothers" and signed, "Henry Copenhagen." The letterhead made no mention of a corporate existence. The plaintiff also introduced in evidence a document entitled an assignment, dated November 11, 1922, the opening sentence of which recites, "Know all men by these presents, that Copenhagen Brothers, a corporation, and Copenhagen Brothers, a copartnership. ***" It is signed thus: "Copenhagen Brothers, a corporation, by Henry Copenhagen, President; Copenhagen Brothers, a copartnership, by Henry Copenhagen." Another document also received in evidence, entitled "Rental Agreement," dated July 1, 1922, recited an agreement between the plaintiff and "Copenhagen Bros.," and bore the signature, "Copenhagen Bros., by Henry Copenhagen." Another document received in evidence is entitled "Power of Attorney" and recites: "Know all men by these presents: That Copenhagen Bros., a corporation, and Copenhagen Bros., a copartnership. ***" It is signed: "Copenhagen Bros., a corporation, by Henry Copenhagen, President; Copenhagen Bros., a copartnership, by Henry Copenhagen." The transactions between the parties were many in number. The plaintiff offered in evidence numerous invoices upon different billheads in which the items were charged to Copenhagen Bros. However, in many instances "Co." appears after the words "Copenhagen Brothers." Mr. Burke testified that these statements were prepared by employees in the office of the plaintiff, and that no significance was attached to the form of the name. Checks for various sums advanced by the plaintiff were frequently drawn to the order of Henry Copenhagen or of Otto Copenhagen. The plaintiff testified that this procedure was adopted as an accommodation to the firm at the request of the partnership. There is no direct testimony that the partnership was ever dissolved.

The foregoing is the principal evidence upon which the plaintiff relies to support its judgment. The following principles of law help to sustain the judgment or determine the weight and the effect of the evidence reviewed above: A partnership is never presumed, and therefore one who alleges such a relationship assumes the burden of proof. H. H. Worden Co. v. Beals, 120 Or. 66, 250 P. 375; Page-Dressler Co. v. Meader, 118 Or. 359, 244 P. 308; Eilers Music House v. Reine, 65 Or. 598, 133 P. 788. The law presumes that persons who are acting as copartners have entered into a contract of copartnership. Subdivision 29, § 9-807, Oregon Code 1930. Based upon the experience that conditions shown to have existed continue as long as it is usual for things of that nature to...