Cayton v. Hardy

• Decision Date: 31 October 1858
• Citation: 27 Mo. 536
• Parties: CAYTON, Plaintiff in Error, v. HARDY, Defendant in Error.
• Court: Missouri Supreme Court

27 Mo. 536

CAYTON, Plaintiff in Error,

v.HARDY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1858.

1. Acts of a partner wholly outside the scope of the partnership business, and known to be so by the person dealing with such partner, are not binding upon the other partner.

2. In determining whether particular acts of a partner are within the scope of the partnership business and binding upon all the partners, if the partnership articles are not decisive of this question, the previous dealings and acts of the partners, or of any of them, the length of time these acts have continued, etc., may be considered.

Error to Ralls Circuit Court.

This was an action to recover possession of two yoke of oxen. It appeared in evidence that said oxen were a portion of the stock of a farm held and leased by the plaintiff. The defense relied on was that said stock was owned by said plaintiff, Cayton, and one Robertson as partners, and that Robertson sold said oxen to defendant. The defendant introduced in evidence the following agreement: “Francis M. Cayton, the party of the first part, agrees to furnish a tract of land large enough to make a good stock farm; also agrees to furnish farming utensils sufficient for use of said farm; and also agrees to furnish four brood mares or more as he may choose, and one hundred (more or less) stock cattle; and also agrees to furnish one hand to work on said farm. And the party of the second part agrees to take charge of said farm and stock, and work and pay strict attention to the same; also agrees to improve said land sufficient for all the stock that may be on it, at the expense of each party; and for such services the party of the first part agrees to give the party of the second part one-third of the proceeds of the farm and stock, after replacing all the stock put on the farm in the first place. The parties are to live on the farm. This co-partnership to last five years, unless one of the parties becomes dissatisfied. Witness our hands and seals. [Signed] Francis M. Cayton (seal.) David C. Robertson (seal.)”

The two yoke of oxen in controversy composed a portion of the stock of the said farm furnished by said Cayton. They were sold by Robertson to the defendant at the price of forty dollars per yoke. This price was paid. The court, at the instance of the defendant, instructed the jury as follows: “The written instrument read in evidence and signed by Francis M. Cayton and David C. Robertson constituted Cayton and Robertson partners as to third persons of the cattle, and stock and proceeds of the farm named in said written instrument; and if the jury believe from the evidence that Robertson sold the cattle in controversy to the defendant, and that they were when so sold a part of the stock named in the said writing, such sale to Hardy by Robertson was good in law to divest the title of Cayton, and the verdict should be for defendant, unless the jury should further find from the evidence that said Robertson sold said stock with the intent to defraud the plaintiff, his co-partner, and that defendant purchased with notice of such intent.”

The plaintiff took a non-suit, with leave, etc.

Porter & Harrison and McCabe, for plaintiff in error.

I. The court erred in instructing the jury that the instrument of writing read in evidence constituted Cayton and Robertson partners. It did not constitute them partners either inter sese or as to third persons. (Colly. on Part. 14, 19; 4 East, 144; 3 Wils. 40; 15 Mo. 481; 15 S. & R. 137; 17 Mass. 197; 14 Pick. 192; 12 Conn. 69; 18 Wend. 175; 20 Wend. 70; 17 Ves. 404; 4 B. & Cr. 867; 1 Rose, 191; 18 Wend. 184; 6 Metc. 82; 6 Halst. 181; 15 Ills. 31; 4 Paige, 148.)

Lamb & Lakenan, for defendant in error.

I. Cayton and Robertson were clearly partners, both as between themselves and as to third persons. Each party had the power to dispose of the stock of the farm aside from the power he would have as partner. The agreement clearly contemplates sales of the stock and proceeds.

NAPTON, Judge, delivered the opinion of the court.

The instruction of the court in this case declared the articles of agreement produced in evidence to constitute a partnership between Cayton and Robertson, as to third persons, of the cattle, and stock and proceeds of the farm, and that the sale to defendant was valid, unless the jury believed there was fraud on the part of Robertson, and that the defendant knew of and participated in the fraud.

That the written instrument executed by Cayton and Hardy constituted a partnership between them is by no means clear. The intention would rather seem to be to constitute a mere agency in Robertson, with a compensation for his labor and services in a sum proportioned to the profits. (Pennie v. Hankinson, 6 Hals. 181.) But the parties themselves call it a partnership, and as Robertson was to share the net profits, and not the ...