Cobb v. Martin
| Decision Date | 09 April 1912 |
| Citation | 123 P. 422,32 Okla. 588,1912 OK 288 |
| Parties | COBB v. MARTIN et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
When the question whether a partnership exists is a matter of doubt, to be decided by inferences to be drawn from all the evidence, it is one of fact for the jury; and the court should not nonsuit or direct the jury to find a verdict for the plaintiff or defendant.
Where it is shown that a partnership at one time existed, it will be presumed to continue, in the absence of testimony to the contrary.
In the absence of a statute, one partner cannot maintain an action at law against another to recover an amount claimed by him by reason of partnership transactions until there has been a final settlement of the affairs of the concern by discharging its liabilities, collecting its assets, and definitely ascertaining the surplus, to a share of which he is entitled. Up to that time, a partner's only remedy is to apply to a court of equity for dissolution and accounting and ascertainment of such balance.
(Additional Syllabus by Editorial Staff)
Books papers, accounts, and similar writings are admissible to show a partnership between persons who are described or referred to therein as partners.
As a general rule, entries in the books of a partnership, during its continuance, are evidence for and against the different members of the firm in a subsequent adjustment of their accounts between themselves.
Parties who have admitted that they are in partnership, either by express statements or by conduct, will be held to that admission.
A prima facie case of partnership is made out against persons associated in a particular business by evidence that they share in its profits, pursuant to an agreement between them by evidence that they have described themselves as partners in any writing, or by evidence that they are the common proprietors of the business conducted for their mutual profit.
A presumption of partnership arises from the use of a name such as is commonly employed when a partnership exists.
Though a partnership is dissolved by the death of a member, it continues, in a limited sense, for the purpose of collecting its claims, paying its debts, and adjusting its affairs during which time an action at law cannot be brought by one partner against another, on account of partnership transactions, until after a settlement.
Commissioners' Opinion, Division No. 1. Error from District Court, Craig County; T. L. Brown, Judge.
Action by Kate Martin and others, trustees of the estate of Edward Martin, deceased, against S. S. Cobb. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.
W. H. Kornegay, of Vinita, for plaintiff in error.
On the 30th day of May, 1904, the plaintiffs herein filed their complaint, on the law side of the docket, in the United States Court of the Northern District of the Indian Territory, at Vinita. The complaint at law, so filed, charged that said plaintiffs were trustees of the estate of Edward Martin, deceased, and his sole heirs at law, and that defendant was indebted to them on a certain note, payable to Edward Martin, executed at St. Louis, Mo., October 29, 1895, for the sum of $10,000, payable six months after date, with interest, and that there was a balance due thereon of $9,536.11, for which amount, with interest, they asked judgment. Thereafter, and on the 28th day of January, 1905, the defendant, Cobb, filed his answer, alleging that in the year 1893 the payee of the note, Edward Martin, and said defendant entered into a partnership, for the purpose of handling cattle in the Cherokee Nation, Ind. T.; that the defendant was a citizen and plaintiff a noncitizen of the Cherokee Nation; that the money used by them in the cattle business was obtained upon promissory notes, usually given by defendant to said Edward Martin, and by him indorsed, sometimes in his individual name and sometimes in the firm name of Cobb & Martin; that they were equal partners in said cattle business, and that the proceeds of the note sued on were used by the firm in buying cattle to run upon the public domain of the Cherokee Nation, in violation of law; that, prior to year 1889, said Edward Martin and the said S. S. Cobb had been partners in the cattle business in the Cherokee Strip, but that that particular partnership had been closed about the year 1889; that, while engaged in the second partnership, they borrowed large amounts of money, their entire capital being derived from loans made to them in the manner above stated; that the note sued on was a note made in the progress of the cattle business, for the purpose of retiring an outstanding note, made by defendant to Edward Martin, and by him indorsed in his own name and in the firm name of Cobb & Martin; that the expenses of handling the cattle in the Cherkee Nation, Ind. T., were borne by defendant, and that the entire proceeds of the sale of the partnership cattle, with the proceeds of the note in question, and other notes, had been turned over to the said Edward Martin during his lifetime and, subsequent thereto, to his executors and trustees as fast as realized, and that the said Edward Martin and his executors and trustees in fact received the proceeds of the sale of the cattle, and that there was still outstanding as a firm liability the amount of money represented by the note in question, and the entire expense of handling the cattle which had been borne by defendant, and which sum exceeded the amount of the note sued on; that the partnership was terminated by the death of Edward Martin in the year 1897; and that the representatives of his estate and his heirs were not willing that an accounting be had of the partnership business; and that plaintiffs should not be permitted to maintain their action. Defendant, as a further defense, pleaded the statute of limitations.
The only testimony offered on the part of the plaintiffs below was the deposition of Joseph E. Martin, one of the plaintiffs, who testified that at the time of his father's death the note in question was in the State Bank of St. Louis, and that it was taken up by him out of the income of the property of the estate. He testified that he did not know that his father and Mr. Cobb were interested in the cattle business--in fact, knew very little about the matter in any way; that he had been paid by Mr. Cobb about $30,000 after his father's death. Joseph Martin identified various documents, submitted to him on cross-examination, as being in his father's handwriting, among which was statement of account, made in the year 1894, which was styled "Statement of a/c of Cobb & Martin"; a note, dated at St. Louis, April 26, 1895, for $10,000, and indorsed by Cobb & Martin and Ed Martin; a note, made at St. Louis, May 16, 1895, for $2,500, indorsed by Ed Martin and Cobb & Martin; a note, made at St. Louis, March 16, 1896, for $5,000, indorsed by S. S. Cobb and Ed Martin; a note, made at St. Louis, August 25, 1896, for $10,000, indorsed by S. S. Cobb and Ed Martin; a note, made at St. Louis, February 20, 1896, for $15,000, indorsed by S. S. Cobb and Ed Martin. The signatures of the five notes mentioned are torn off of the original exhibits, but all were made payable to the order of either Ed or Edward Martin, and indorsed as above stated.
There was also introduced, without objection, a deposit slip of the National Bank of Commerce of St. Louis, dated May 16, 1895, showing a deposit by the firm of Cobb & Martin on that date of $2,421.65. Various receipts, signed by Joseph E. Martin, secretary and treasurer of the estate organization, were admitted in evidence. The receipt of July 19, 1898, recited, "On account of proceeds of cattle." The receipt of December 13, 1898, contained the following memorandum: The receipt of July 14, 1899, recited, "For 103 cattle." The receipts of October 20 and 21, 1898, referred to proceeds of two sales of cattle; one for 234 head, the second for 52 head. A letter, written at St. Louis, Mo., December 24, 1897, addressed to plaintiff in error, was as follows: A deposit slip of the Mississippi Valley Trust Co., dated December 20, 1897, showed a deposit, made by the defendant to the trustees of Edward Martin and Joseph E. Martin, executor, amounting to $28,102.14.
The defendant, Cobb, testified that he knew Edward Martin in his lifetime, had met him at different places, and that Martin had visited him when they had a ranch on Cabin Creek; that after Mr. Martin's death in the fall of 1896 young Ed Martin, one of the trustees of the estate, and a lawyer named McGinn came to see him about the cattle, and that he tried to get a settlement out of them; that the business was in bad shape; and that defendant offered to turn the cattle over to them and lose his expenses, but was told that they could not accept his offer, but for defendant to keep the cattle and do the best he could with them; that none of the cattle were fit to ship to market that year, and were kept until the next year and fed and wintered; that the market was very bad, and that defendant did the best he could in shipping out and realizing from the business; that when he sold or shipped the cattle he turned the checks over to Mr. Martin; that he owned none of the cattle individually; that defendant knew nothing about how the various notes at St. Louis were taken up, as that matter was attended...
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