Cargill v. Corby

• Decision Date: 31 January 1852
• Citation: 15 Mo. 425
• Parties: CARGILL & OWEN v. CORBY.
• Court: Missouri Supreme Court

15 Mo. 425

CARGILL & OWEN

v.CORBY.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM BUCHANAN CIRCUIT COURT.

GARDENHIRE, for Appellants. 1. The court erred in refusing the instructions asked by the appellants. Story on Partn. p. 158, § 102, n. a; 3 Kent's Com. 40, 41, 42; 5 Blacks. 210. 2. The court erred in giving the instructions asked by the respondent. Man v. Lock, 11 N. Hamp. R. 249; Gay v. Bowen, 8 Metc. 100; Taunton Iron Co. v. Richmond, 8 Metc. 434.

LOAN & HAYDEN, for Respondent. 1. The Circuit Court did not err in refusing to give the jury the first instruction asked by the plaintiffs, that notwithstanding said instruction may contain correct abstract principles of law, yet there being no evidence before the jury upon which to base the instruction, the court very properly refused to give it to the jury. To the limited and special partnership proved to have existed between said Gingry and defendant the presumption of the right of one partner by his acts to bind the co-partnership that arises ordinarily on the proof of the existence of a partnership for commercial purposes does not attach, but in such a case to make one partner responsible for the the act of his co-partner some evidence must be given tending to show that such act was necessary for the purpose of carrying on the business of the co-partnership or that it was usual for other companies engaged in the like business to do such acts, or to show some authority, other than the mere fact of being such partners, to do such act. 2. The court did not err in overruling the motion to give the second instruction asked by the plaintiffs for the reason that no evidence was given to the jury tending to prove that the note sued was executed for flour delivered to Corby & Co. The court committed no error in giving to the jury as the law governing the case the instructions asked by the defendant. Because said instructions are based upon the evidence given in the cause and contain a correct exposition of the law governing the same: see Chitty on Bills, 46, 48 and note; Winship v. Bank of United States, 5 Peters, 529. If the foregoing propositions be true it follows as a consequence that the plaintiffs' motion to set aside the nonsuit and for a new trial was properly overruled by the court. The court will not reverse the judgment of the Circuit Court because, 1st. The plaintiffs have failed on the trial to prove the execution of the note sued. 2nd. The evidence given on the trial of the cause in the Circuit Court tending to prove the execution of the note sued has not been preserved in the bill of exceptions. 3rd. The judgment is in accordance with equity and good conscience and is manifestly for the right party. Although this transaction may have been purely of a partnership nature, the defendant is not liable on the note sued on because the plaintiffs, prior to that date said note bears, had been expressly notified by defendant that he would not be responsible for any contract that said Gingry might make for him. See Chitty on Contracts, 256, where it is said that the authority of one partner to bind the firm is only implied and no one can become the creditor of another against his express and declared wi.

GAMBLE, J.

Cargill and Owens composed a firm under the style of Cargill & Co. Corby was a member of a firm trading with the Indians and having a trading establishment at Bellevue in the Indian territory. His partner, one Gingry, conducted the establishment: and the style of the firm was Corby & Co. Flour was one of the articles in which they dealt. Cargill & Co. sent flour up the Missouri river and at Bellevue, sold and delivered to Gingry about fifty barrels for the price of which, they received an order drawn by Gingry upon Corby. This order was presented to Corby and refused to pay it. Three witnesses testify as to the conversation between Corby and Owens at the time the order was presented, one says Corby told Owens “that Gingry had no right to bind him in any contract,” another says Corby told Owens “that the drawer of the draft had no right to contract debts for him,” the third says that Corby refused to pay the draft “because Gingry had no funds in his hands with which to pay it.” The presentation of the order and the conversation between Corby and Owen occurred in October, 1850. The present suit is founded on a note made by Gingry, in the name of Corby & Co. in favor of Cargill & Co. and dated January 19th, 1851. This note was presented to Corby for payment in February, 1851, and on that occasion Corby refused to pay it, saying it was the same demand that had been previously presented.

At the trial, the court was asked by the plaintiffs to give the following instructions which were refused: 1st. If Corby and Gingry were partners at the time the note sued upon bears date and Gingry executed the note in the partnership name, the presumption is that the note related to the partnership and was on partnership account, and unless the defendant rebuts this presumption by showing that the note did not relate to the partnership, and was not on partnership account they will find for the plaintiffs. 2nd. If flour was an article in which Corby & Co. dealt at Bellevue, and plaintiffs delivered flour to Gingry there, for which the note sued on was executed they will find for the plaintiffs, unless the defendant has shown, that by a private arrangement between himself and Gingry the latter had no right to purchase on partnership account, and plaintiffs had notice of that...