Gates v. Watt

• Decision Date: 27 May 1889
• Docket Number: 44
• Citation: 127 Pa. 20,17 A. 751
• Parties: JOSEPH GATES v. C. F. WATT ET AL
• Court: Pennsylvania Supreme Court

17 A. 751

127 Pa. 20

JOSEPH GATES v. C. F. WATT ET AL

No. 44

Supreme Court of Pennsylvania

May 27, 1889

Argued May 9, 1889

ERROR TO THE COURT OF COMMON PLEAS OF McKEAN COUNTY.

No. 44 January Term 1889, Sup. Ct.; court below, No. 401 May Term 1883, C. P.

On April 20, 1883, an action of assumpsit was brought by C. F Watt and J. B. McElwaine, lately trading as Watt & McElwaine now to the use of J. B. McElwaine, against Charles Sipler John J. Ashbaugh, Joseph Gates and Eli Logue, partners lately trading as Sipler, Ashbaugh & Co. Joseph Gates alone was served, and to the plaintiffs' narr in the common counts, to which was attached a copy of a book account for goods sold and delivered, he pleaded, non-assumpsit.

At the trial on February 15, 1889, the sole contention was upon the fact whether or not the defendant Gates was a member of the partnership against which the writ issued. Testi mony was introduced from which it was claimed on the part of the plaintiff that the defendants in the writ were partners in the drilling of an oil well for which the goods were supplied; that Gates had a one fourth interest therein, and in the leasehold on which it was located, contributing one fourth of the cost thereof. The plaintiff testified that he had presented the bill to the defendant: "I spoke to him about it, and told him about the unsettled account of Sipler, Ashbaugh & Co., and told him it was time it was settled, and he asked why I hadn't spoke to him about it before; that he supposed the matter was settled; that he had paid his share and more too, and didn't think he ought to pay any more. I told him it was not my fault, that it was not settled; that it was his business to see that it was settled. I had spoken to the other parties."

The defendant denied that he was a partner in the drilling of the well and testified that he had only purchased a one fourth interest in the lease with the well upon it drilled to completion. On cross-examination, he was asked: "Q. Suppose the well never was completed, what part of the stuff would you have owned? A. I would have owned one fourth."

The other testimony submitted sufficiently appears in the charge to the jury, OLMSTED, P.J.:

The case which you have been sworn to try is an action of assumpsit brought by Watt & McElwaine for the use of McElwaine, against four persons as partners; against Gates, Sipler, Ashbaugh and Logue as partners. The allegation on the part of the plaintiff is, that these four persons were partners in the oil business in Butler or Clarion county in this state, and that he sold a quantity of goods on the credit of this partnership. The evidence seems to show that the goods were sold sometime in November or December of 1876. The defendants here defend on the allegation that there was no partnership existing between these four men who are sued as partners.

Before we proceed any further we have been requested by counsel for defendant to answer certain points in writing, which we will answer now and proceed with our general charge.

1. The plaintiff having sued the defendants jointly, he can only recover on proof that all the defendants named in his praecipe and declaration were partners of the alleged firm in fact, or that each and all of the defendants either held themselves out as partners or knowingly permitted it to be done.

Answer: We affirm this point as a correct statement of the law applicable to partnerships, as we understand it.

2. There is no evidence to warrant or justify the jury in finding that at any time prior to the first of February, 1877, or at any other time, the defendants, Ashbaugh, Gates and Logue, were copartners of Sipler, as alleged in plaintiff's pleadings.

Answer: We cannot affirm this point, but call your attention in our general charge to the evidence bearing on the question of partnership.

3. There is not a scintilla of evidence that all of the defendants sued were partners at or prior to the alleged sale of the goods claimed for in this suit, and there being no evidence of any subsequent undertaking of each and all of them to pay for said goods, or any of them, the plaintiff cannot recover.

Answer: We cannot affirm this point. We cannot say there is not a scintilla of evidence that the defendants were partners at the time of the sale of the goods.

4. Under the evidence in this case, it is purely a question of law for the court, whether or not the plaintiff has proved a copartnership between all of the defendants sued, and if he has not he cannot recover.

Answer: We cannot affirm this point. It would ask us to take the case from the jury, and say to them that there was no evidence from which a partnership could be found by the jury, in the case, and that therefore the plaintiff could not recover. The conclusion of this point is correct, if there is no evidence, or not sufficient evidence of a partnership in the case; then it is true as stated here that the plaintiff cannot recover.

* * *

[Now, how is the alleged partnership proved in this case? We have been asked to withdraw the case from the jury, and hold as a matter of law, under the evidence, that there is no proof whatever of a partnership between these defendants. We have had some doubt as to our duty in this respect, but conclude that there is some evidence upon this subject that should go to the jury on the subject of a partnership, although we deem it our duty to say to you that the evidence going to show that the defendants were partners is not strong. Yet we think we should not withdraw it from your consideration, but trust that you will examine the evidence closely, and find a verdict upon the evidence and the evidence only.]

No question is raised about the sale of the goods sued for, and their delivery to Sipler, one of the defendants; the question is, were these defendants partners and can they be called upon to pay for these goods?

The goods seem to have been delivered to Sipler in the fall of 1876. The amount is 354.76; no controversy about that. The last charge, I think, was December 19, 1876. A larger amount of goods seem from the testimony of McElwaine to have been sold in the same way, and several payments made by Sipler reducing the claim to the amount claimed in this action. I think McElwaine testified to that, to two payments, perhaps, by Sipler. But were these defendants partners at the time of the sale and delivery of these goods? The goods seem to have been charged to Sipler, Ashbaugh & Co., but this is a fact of no consequence in the case as establishing the partnership.

The plaintiff contends that the defendants were partners in putting down an oil well, and the defendants contend that the arrangements between them did not constitute a partnership, and Sipler, Gates and Ashbaugh have each taken the stand and each denied that any partnership existed between them, and each state the facts from which it is claimed by the plaintiff that a partnership is to be found, taken in connection with the other evidence. We have said to you that men may be held liable as partners, who hold themselves out to the world as partners, and thereby obtain credit. But there is no sufficient evidence that these parties held themselves out to the world as partners, and no recovery can be had against them for such reason, unless you find that they were partners in fact. Sipler is the only one of them that ever, according to the evidence, claimed that they were partners; and this is not such a holding out as partners as would make Ashbaugh, Gates and Logue partners or liable under it, unless they were actually partners in fact by their own agreement. And we say to you there can be no recovery in this case, unless you find that the defendants were, each and all of them, members of the partnership to which the goods were delivered.

Now the evidence on the question of the partnership is confined mainly to the testimony of Sipler, Gates and Ashbaugh, I think they were the ones that were sworn. It is testified, or contended, or not denied, and evident from the evidence in the case, that in February, 1877, the February...