Conlan v. Mead

• Decision Date: 14 February 1898
• Citation: 49 N.E. 720,172 Ill. 13
• Parties: CONLAN v. MEAD et al.
• Court: Illinois Supreme Court

172 Ill. 13

49 N.E. 720

CONLAN

v.MEAD et al.

Supreme Court of Illinois.

Feb. 14, 1898.

Appeal from appellate court, First district.

Action by Maurice A. Mead and Rufus C. Frost, partners doing business as M. A. Mead & Co., against James Conlan and William J. Watson. From a judgment of the appellate court (70 Ill. App. 318) affirming a judgment against both defendants, Conlan appeals. Affirmed.

Thomas J. Walsh, for appellant.

Edgar L. Jayne, for appellees.

This was an action of assumpsit brought by appellees, a firm known as M. A. Mead & Co., against William J. Watson and James Conlan, a firm, as is claimed, known as W. J. Watson & Co. The action was brought by suing out a writ of attachment, which was levied on certain property. The declaration contained the common counts, to which the defendant Conlan filed a plea traversing the grounds for an attachment set up in the affidavit. He also pleaded the general issue, and filed a plea denying joint liability with the defendant Watson, which was duly verified. Issue was taken on the pleas, and on a trial before a jury all the issues were found in favor of plaintiffs, and a verdict for the amount claimed was returned, upon which the court entered judgment. The defendant Conlan appealed to the appellate court, where the judgment of the court upon the issue in attachment and the award of special execution was set aside, and the judgment in assumpsit for the amount of the debt was affirmed. To reverse the latter judgment the defendant James Conlan has appealed to this court.

CRAIG, J. (after stating the facts).

The principal contest in the circuit court was over the question whether the defendant Conlan was a member of the firm of W. J. Watson & Co., and as such liable for the debts of the firm. Upon the application of the appellant, the jury returned answers to interrogatories on the question of partnership as follows: ‘Q. Did the defendant Conlan agree with defendant Watson to form a co-partnership? A. Yes. Q. Did the defendant Conlan so conduct himself as to induce the plaintiffs to believe that he was a partner of defendant Watson? A. Yes.’ The finding of the jury in the circuit court, having been followed by a judgment of the appellate court affirming the judgment of the circuit court, settles the question of fact against appellant. It will therefore only be necessary for this court to determine whether the ruling of the circuit court during the progress of the trial conformed to the law. It appears from the record that the firm of Wm. J. Watson & Co. was originally composed of two parties, Watson and A. G. Laubengayer. On February 15, 1893, Laubengayer executed the following paper: ‘February 15, 1893. For and in consideration of $400.00 to me in hand paid, receipt of which is hereby acknowledged, I sell, convey, transfer, and assign all my interests and title in and to the assets, stocks, fixtures, and accounts, and all belongings of the firm of William J. Watson & Co., and Queen City Watch Company, to James Conlan, and said James Conlan hereby assumes my share and liability in the liabilities of said above-mentioned firms. [Signed] Alfred G. Laubengayer. Witness: May Troughton.’ At the time the paper was executed, Watson, Conlan, Laubengayer, and one Peck were present. Peck was called as a witness for plaintiff, and, among other things, testified as follows: ‘I was introduced to him [Conlan] as the successor of Mr. Laubengayer in this business. I asked Mr. Conlan at the time if he was going to engage in the business, and he said he thought he would try his hand at it.’ On the application for a new trial Conlan filed his affidavit, in which he stated that ‘on the trial the material questions of fact were whether this affiant had formed a partnership with his co-defendant, and whether this affiant had held himself out as a partner of his co-defendant; that on said trial one Moreau Peck testified on behalf of said plaintiffs that one Alfred G. Laubengayer had introduced to said Peck this affiant as his successor in business; that said Peck asked this affiant if he was going into the jewelry business, and that this affiant had answered that he was going to try his hand at it; that the said testimony of Peck was the...