Campbell v. Dent

• Decision Date: 31 October 1873
• Citation: 54 Mo. 325
• Parties: ROBERT CAMPBELL, et al., Defendants in Error, v. JOHN C. DENT, Plaintiff in Error.
• Court: Missouri Supreme Court

54 Mo. 325

ROBERT CAMPBELL, et al., Defendants in Error,

v.JOHN C. DENT, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to St. Louis Circuit Court.

Geo. P. Doan and Jecko & Hospes, for Plaintiff in Error.

I. The cause was tried on the theory, that Barrow was the agent of Dent, by reason of a partnership which existed between them. The agency should have been established before evidence of the acts of agency or partnership was received. (2 Starkie Ev., 40, §§ 41, 44; Brown vs. Bank Mo., 2 Mo., 191; Scarborough vs. Reynolds, 12 Ala., 252; M'Donnell vs. Bank of Montgomery, 20 Ala., 313.)

II. No contract of agency or partnership as between Dent and Barrow themselves is proved. (Freeman vs. Bloomfield, 43 Mo., 391.)

III. There was no evidence adduced by plaintiffs to show that Dent held himself out as a partner or admitted himselt afterwards to be a partner. (1 Phillips' Ev., 462, n.; Osborne vs. Brennan, 2 Nott & McC., 427; Smith vs. Wright, 1 Abbott Pr., 243; Dry vs. Boswell, 1 Campb., 329; Denny vs. Cabot, 6 Met., 82; Burckle vs. Eckart, 1 Denio, 337; Perrine vs. Hankison, 6 Halst., 181; Divinel vs. Stone, 30 Me., 384; Rapp vs. Vogel, 45 Mo., 524; 10 Am. Law Reg., 209; Story Partn., [Ed. 1868] Chap. 4, §§ 48, 49; Cox vs. Hickman, 8 House of L. C., 268, overruling Waugh vs. Carrier.)

IV. An interest in profits, given as a compensation, does not make the person receiving such interest a partner. (See cases under 2 and 3, supra.)

Thos. T. Gantt, for Defendants in Error.

I. There was evidence tending to prove the facts stated hypothetically in plaintiff's instruction; and the sufficiency of that evidence to convince the jury was a matter for them, not for the court now.

II. If Dent and Barrow transacted business as post traders at Fort Fetterman, under the name of J. C. Dent & Co., Dent furnishing the permit and the use of his name to the concern, and Barrow furnishing the goods with the agreement that Dent should have a certain share of the profits, then Dent held himself out to the world as a partner, and was liable as such to all who believed him to be so. (Waugh vs. Carver, 2 H. Bl., 235, and cases cited in the notes; Stearns vs. Haven, 14 Ver., 540; 1 Smith Lead. Cas.; Story Part., §§ 20-27; Pars. Part., 48-65.) Whether such a condition of things constituted him a full partner of Barrow, as between themselves, is of no consequence. As to the world at large, they were partners and liable to all the consequences of that relation. (Turner vs. Bissell, 14 Pick., 192; Miller vs. Bartlet, 15 Serg. & R., 137.)

III. Dent permitted his name to be used as a member, and as a leading member, of the firm. The authorities of the War Department knew him alone as post-trader. The permit was to him. His name was a prime necessity to the store of the post-traders; the firm could have no existence without his name. On this ground alone he was liable. (See the cases cited above; Chitty Cont., 194-5; Chase vs. Barret, 4 Paige, 148.) The credit was given to the firm of J. C. Dent & Co. Every element of liability, then, is united here. (Whitehill vs. Shickle, 43 Mo., 537.)

VORIES, Judge, delivered the opinion of the court.

This action was brought in the St. Louis Circuit Court by Robert Campbell and others against John C. Dent to recover the price of certain goods charged to have been sold and delivered to defendant, a bill of particulars of which was filed with the petition.

The petition charged, that the goods were sold to defendant (together with one John E. Barrow), and that they were delivered to and came into the possession and use of the defendant, and that he has failed to pay, etc. The defendant by his answer denies every material allegation in the petition.

The plaintiffs recovered a judgment at the special term of the Circuit Court, from which the defendant appealed to the General Term, where the judgment was affirmed, and defendant has brought the case here by writ of error.

The evidence, offered and given on the trial on the part of the plaintiffs, was in substance as follows: John Nolan, a witness for plaintiffs, testified, that in the month of November, 1867, he was in the employment of plaintiffs as salesman, knew John E. Barrow, and at the date of the bill sued on was directed by plaintiffs to sell goods to Barrow, the goods set forth in the account sued on. The witness was then asked this question by plaintiffs: “State what was said and done by Barrow at the time?” Defendant objected to this question, as it was not in proof that Barrow was the agent of defendant, and that there was no such allegation in the petition. Plaintiff's attorney then stated to the court, that if it was not proved that Barrow was the agent of the defendant, plaintiffs would not ask for a verdict. The court then overruled the objection made to the evidence, to which ruling of the court the defendant excepted. The witness then said, that Barrow directed him to make out the bill to J. C. Dent & Co., to have the boxes, in which the goods were packed, marked to J. C. Dent & Co., Fort Fetterman, which was done. The goods were charged in the sale book to J. C. Dent & Co. On cross-examination witness stated, that he did not know defendant, never had any conversation with him, that what he had said was what Barrow told him; had sold Barrow goods before, but he was not then in good credit; witness did not ship the goods himself or see them shipped.

It was testified by Hugh Campbell, one of the plaintiffs, that at the time of sale, or a few days before, Barrow told witness, that defendant had a permit to trade at Fort Fetterman, a military post in the Indian County, and that Barrow wanted to purchase goods for that purpose, and the goods were sold at the time named. At the time of the sale witness did not know defendant. Some months after the sale, witness heard a conversation between Robert Campbell, the other plaintiff, and defendant, in which defendant said he was not in partnership with Barrow, and was not liable to plaintiffs for the goods sold to him, but that defendant admitted, that he was interested in the profits of the adventure. Witness stated, that he could not state the words used by defendant, but he admitted that he was interested in the profits. Barrow had purchased of plaintiffs frequently on his own credit, and had paid for the purchases. Witness stated that he did not, at the time the goods were sold, know anything of the financial standing or responsibility of defendant, made no inquiry in reference thereto. Barrow told witness, that defendant had several permits to trade. The bill of goods sued for was settled by taking Barrow's individual note therefor; did not know why it was so settled, would not have so settled it, if witnesss had known it. The goods sued for have not been paid for. Barrow was sued on the note, judgment obtained, but it had not been paid. David Rankin testified to the same conversation related by Campbell, and also testified, that he was clerk for plaintiffs, and that they had frequently sold Barrow goods before on his own credit.

The foregoing, is all of the evidence offered or given by the plaintiffs. At the close of this evidence, defendant moved the court to instruct the jury, that there was no evidence before them which sustained the allegations of the plaintiffs' petition. The court refused said instruction, to which the defendant excepted. The defendant then read in evidence the deposition of John E. Barrow, which was in substance: That he had known plaintiffs for ten or fifteen years past; he had purchased goods from them frequently; that the last purchase was made in Nov., 1867, the bill sued for; the goods were shipped and sent to Fort Fetterman, Dakota Territory; that he bought them for himself; defendant was not present at the time of the purchase; defendant did not authorize witness to use his name; that witness bought the goods on his own responsibility; defendant had the permit from the government to trade at Fort Fetterman, that witness had no permit, and could not trade there except under Mr. Dent's name; that his recollection was, that he had explained this matter to the clerk and Hugh Campbell at the time he purchased the goods, and that he bought the goods on his own responsibility, and that defendant had a certain share in the profits; this share was one-fourth of the profits for the privilege of trading under his permit; no profits were made, but a loss; defendant was not to share in the loss. On cross-examination witness stated, that he told the clerk, that he bought the goods for himself under defendant's permit as a trader, and thought he had told Hugh Cambpell the same; that the firm of John C. Dent & Co. was composed of witness individually, and he ordered the goods to be shipped to John C. Dent & Co., and gave the direction about shipping; Spencer disposed of the goods, and was to have one-fourth of the profits for his management. Witness stated, that defendant did not authorize him to use his name in the purchase of these goods under his permit; the fourth of the profits to defendant was a compensation for the use of his permit.

The plaintiff introduced evidence in rebuttal, to the effect, that Barrow had not told Nolan and Campbell, that he purchased the goods on his own account to sell under Dent's permit. This was all of the evidence.

The court then, at the request of the plaintiffs, instructed the jury as follows:

“If the jury believe from the evidence, that the defendant and one John E. Barrow were in November, 1867, engaged in business as post traders at Fort Fetterman, in the Indian Territory, under the name and style of J. C. Dent & Co., the said J. C. Dent being the defendant; that the terms of their partnership were as between themselves, that the said J. C. Dent should procure the permit from the United States authorities to sell goods at that post, that Barrow should furnish the capital, and that the profits of the business should be divided...