Fairly v. Nash
Decision Date | 05 December 1892 |
Citation | 12 So. 149,70 Miss. 193 |
Court | Mississippi Supreme Court |
Parties | P. FAIRLY v. D. A. NASH |
FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.
The opinion states the facts.
Affirmed.
Brame & Alexander, for appellant.
The features of the contract indicating a partnership are as follows:
1. Sharing net profits. This is prima facie a test of a partnership. No intent to create a mere agency appears on the face of the agreement. 1 Lindley on Partnership, 34; 1 Bates on Partnership, § 15; Wood v. Thompson, 22 How. (U. S.), 330; Lynch v. Thompson, 61 Miss. 354; Tharp v. Marsh, 40 Ib., 158; 114 Mass. 114; 105 N.C. 283; 127 Pa 442.
2. The debts were payable, not by Nash, but out of the business. Even the share of Skellinger was not a debt against Nash. He could not sue Nash at law.
3. Each had a voice in selecting clerks, and the books were always open to both.
4. Skellinger's profits were as contingent as Nash's. Neither could draw out any thing until an accounting. The machinery for terminating the relation was as complicated as in partnerships. Skellinger had the right to compel the application of the assets to the payment of debts.
5. No time was fixed for the duration of the relation. The interests could be separated, and a settlement had, only in chancery.
6. Skellinger was to divide the profits of any other venture. Surely, he was not a mere agent in so doing.
Even as general agent, Skellinger had the implied power to protect the business from ruin. Debts were unpaid, and accumulating. In borrowing money to pay them, no new or greater liability was incurred. The outstanding debts were valid. Skellinger, having express power to make debts, had an implied power to provide, by borrowing, for their payment.
Finally, if not technically liable on the note, Nash is liable as for money had and received. No pleadings are necessary in the justice court. If, under the evidence, defendant is liable, it was error to grant the peremptory instruction.
D. Shelton, for appellee.
1. The contract itself terms the parties principal and agent, not partners. The sign proclaimed the agency.
2. Nash, as principal, furnished the money, and Skellinger conducted the business as "agent and manager" for Nash.
3. No power to borrow money or execute interest-bearing notes is conferred.
The foregoing provisions negative the idea of a partnership. Sharing the net profits cannot change the character of the agreement. There was no contract to share loss. Nash's investment was to be returned. If lost, he could not recover of Skellinger half of it. There was no mutual sharing of profits, each as a principal trader. See Collier on Partnership, §§ 25, 27; Story on Partnership, § 55.
As the agreement shows an intent to create Skellinger merely a superintending agent, this intent will control.
An agent has no implied power to bind his principal by borrowing money and executing notes. In this case, no express authority was shown, and the instrument, by expressing certain powers, excludes all others.
E. E. Baldwin, on the same side.
Argued orally by C. H. Alexander, for appellant, and E. E. Baldwin, for appellee.
In July, 1890, D. A. Nash, the appellee, and one W. S. Skellinger entered into a written contract, the terms of which were as follows:
Under this agreement the business was conducted, a sign being over the door, on which were the words "W. S. Skellinger, agent for D. A. Nash."
Skellinger opened an account with the Capital State Bank in his name, as agent, depositing the money arising from said business, and drawing checks thereon in discharge of accounts for goods bought by him therein. On December 2, 1890, the Capital State Bank had for collection a number of drafts, drawn on Skellinger, agent, for goods bought by him in conducting the business under the contract with Nash, and there was no money in bank to the credit of Skellinger, agent.
To raise money with which to discharge these claims, Skellinger applied to the appellant, Fairly, to become surety upon a note for $ 100, payable to the Capital State Bank, and represented to him that, as agent for Nash, he had full authority to make the note. Relying upon this representation, and the fact that Skellinger was the recognized agent of Nash to conduct the business, and was so conducting it, Fairly joined in the execution of the note with Skellinger, who signed the same "W. S. Skellinger, agent," intending thereby to bind Nash as his principal. The bank discounted the note, and placed the proceeds to the credit of Skellinger, agent, who drew checks upon the fund thus created in payment of the accounts due in the business of Skellinger, agent for Nash; and, in the payment of such accounts, the amount was exhausted, except as to about eleven dollars, which amount was paid out on the order of Skellinger, agent, to one Carraway--who was the father-in-law of Nash--but on what account this payment was made does not appear in evidence.
When the note above spoken of matured, Skellinger failed to pay it, and Fairly, the surety, being called on by the bank, paid the amount to the bank, which indorsed thereon the words:
and delivered it to Fairly. Fairly thereupon filed the note, as his cause of action, with a justice of the peace, and caused process thereon to be issued against Nash and Skellinger.
Skellinger made no defense, and a judgment by default was taken against him. Nash filed a plea of non est factum; and, a judgment having been rendered against him by the justice of the peace, appealed to the circuit court, where, upon the development of the facts as above set forth by the witnesses for the plaintiff, the court gave a peremptory instruction for the defendant, Nash, and there was a verdict and judgment for him, from which Fairly appeals.
It is contended for the appellant:
1. That the contract between Nash and Skellinger constituted a partnership between them;
2. That, if Nash and Skellinger were not partners, then Skellinger was the agent of Nash, having authority, real or apparent, to bind him by the note;
3. That the money raised by Skellinger and Fairly from the bank having been applied to the payment of debts which were obligatory on Nash, he has, in contemplation of law, received money which, ex oequo et bono, should be repaid to...
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