Hartney v. Gosling

• Decision Date: 28 May 1902
• Citation: 10 Wyo. 346,68 P. 1118
• Parties: HARTNEY v. GOSLING, ET AL
• Court: Wyoming Supreme Court

68 P. 1118

10 Wyo. 346

HARTNEY v. GOSLING, ET AL

Supreme Court of Wyoming

May 28, 1902

ERROR to the District Court, Sweetwater County, HON. DAVID H CRAIG, Judge.

The suit was brought by plaintiff in error to recover of defendants a certain sum of money alleged to have been loaned by him to them as a partnership. The facts are stated in the opinion. Judgment was rendered for defendants, and plaintiff brought the case here on error.

Judgment affirmed.

John H Chiles and T. S. Taliaferro, Jr., for plaintiff in error. (C M. Watts, of Counsel.)

There can be no doubt but that, under the law, the agreement entered into by defendants in error, with others, constituted a mining partnership. (Crawshay v. Maule, 1 Swanst., 495; Fereday v. Wightwick, 1 Russ. & M., 45; Williams v. Attenborough, 1 Turn. & R., 70; Dickenson v. Valpy, 10 B. & C., 128; Colly, Partnerships, Secs. 801, 808; 1 Bates, Partnership, Secs. 163, 374; Charles v. Eshleman, 5 Colo., 107; Manville v. Parks, 7 Colo., 128; Skillman v. Lachman, 23 Cal. 199; Duryea v. Burt, 28 Cal. 569; Kahn v. Smelting Co., 102 U.S. 641; Bissell v. Foss, 114 U.S. 252, 260; Rockwell on Mines, 574; Lamar v. Hale, 79 Vt. 147; Boucher v. Mulverhill, 1 Mont., 306; Settembre v. Putnam, 30 Cal. 490; Lawrence v. Robinson, 4 Colo., 567; Meagher v. Reed, 14 Colo. 335; 15 Enc. Law (1st Ed.), 609 et seq.; Armstrong v. Higgins, 9 Colo., 38; Nolan v. Lovelock, 1 Mont., 224; Lyell v. Sanbourne, 2 Mich., 102; Patrick v. Urston, 22 Colo. 45; Congdon v. Olds, 18 Mont. 487; Abbott v. Smith, 3 Colo. App., 265.) It seems that the mere constitution of such a company, or mining partnership, is evidence of an implied authority from one partner to another to pledge his credit by borrowing money or purchasing necessaries for carrying on the concern or business. The mere fact of the organization of this company, and sending Young to Alaska to prospect for them, was an implied authority to Young to pledge the credit of each member of that partnership, for the purpose of purchasing supplies or borrowing money necessary to the carrying on of the business of prospecting.

The undisputed proof in this case shows that all the money and supplies for which this action is brought was used by Young, while carrying on the business for which purpose the company was organized, viz.: prospecting for gold. It makes no difference as to what agreements the different partners had between themselves as to what their liability would be. The plaintiff in error had no notice of these agreements and under all the authorities cannot be bound by them. (Nolan v. Lovelock, 1 Mont., 225.)

When the trial court permitted the witnesses, Park and Keenan, to testify that they had never authorized Young to purchase supplies or borrow money on the credit of the company or themselves, it committed error.

As to the court's refusal to allow the witness Young to testify as to the contents of the letter written by Gosling, authorizing him to borrow money, and also to answer the questions as to statements made to Hartney by him, we have, as we think, conclusively shown that each member of the partnership had implied authority to bind the others for the purpose of borrowing money or purchase of supplies necessary for the conduct of the business, and the contents of this letter being for that purpose (and Young's statements to Hartney as to his authority to bind the company) it was clearly admissible, and in all events was admissible as binding the defendant in error Gosling himself.

Nor can it be urged that there is a variance between the allegations of a co-partnership debt and the proof of an individual debt when looking at the matter from this point of view, for our statutes provide that "judgment may be given * * * against one or more several defendants * * *." (Rev. Stat., Sec. 3752; Whittaker's Ohio Annotated Code, Sec. 5311, and cases cited.)

Where several persons are sued as partners and part only prove to be liable or authorized the contract, or found to be partners, it is now nearly everywhere the rule that in actions on contract, as well as in tort, judgment may be rendered against them, and for the others. (Bates on Part., Sec. 1094; 10 Ohio St. 451; Morgan v. Righetti, 45 P. 260; 11 Enc. Pl. & Pr., 853; 15 id., 960; Bliss' Code Pl., Sec. 74.)

No brief for defendant in error.

POTTER, CHIEF JUSTICE. CORN, J., and KNIGHT, J., concur.

OPINION

POTTER, CHIEF JUSTICE.

The plaintiff in error, Thomas Hartney, brought suit against C. H. Gosling, Dennis D. Waters, John Hartney, H. H. Edgar, John Park, and George L. Young, alleging that said defendants composed a partnership, and that at their special instance and request, on or about February 25, 1899, he loaned the defendants the sum of five hundred dollars, which they promised to repay to him, that no part of the said sum has been paid by defendants or either of them and that there is due to plaintiff from the defendants and each of them upon said account the said sum with interest. A statement of an account is attached to the petition, and referred to therein, containing one item only, viz.: "February 25, 1899. To money loaned and advanced, $ 500."

Of the defendants named in the petition, three only, Gosling, Keenan and Park, appeared and answered. Their answer was a general denial. The case was tried to the court without a jury upon the issue thus framed and the finding was general in favor of the answering defendants, and the judgment was that plaintiff take nothing, and that the said defendants have and recover their costs from the plaintiff. A motion for new trial was overruled, and plaintiff prosecutes error.

The errors alleged in the petition in error are that the court erred in overruling the motion for new trial and in redering judgment in favor of the defendants for costs. The grounds for new trial contained in the motion are that the decision of the court is contrary to law, and not sustained by sufficient evidence; and that said decision is contrary to both law and the evidence; and that the court erred in excluding certain evidence therein set out offered by plaintiff, and admitting in evidence certain testimony therein also set out offered on the part of the defendants. These matters of evidence in respect to which it is charged that error was committed will be pointed out more specifically as we proceed.

The dealings out of which this suit arose occurred in Alaska between the plaintiff and George L. Young. The plaintiff provided Young with some money and provisions, and it is claimed that the circumstances were such as to place the defendants, as members of a mining partnership, under a legal obligation to reimburse the plaintiff therefor.

Prior to the departure of Young for Alaska, a written agreement was entered into between him and the other defendants. That instrument having been lost, evidence was introduced to show its contents. Young, Keenan and Park were each examined in relation to the agreement, and there is but little practical conflict in their testimony. Young was to proceed to Alaska and prospect for gold, and anything found by him was to be owned by the defendants in the following proportions: Young was to own three-tenths, Gosling two-tenths and each of the others one-tenth. He was furnished with seven hundred dollars by the other defendants, each one paying one hundred dollars, except Gosling, who paid two hundred dollars. In addition thereto they agreed to furnish to the family of Young, for their support during his absence, the sum of fourteen dollars per month, and the agreement in that respect was complied with.

Young testified that if he found a mine containing gold he was to develop the mine and dig out the gold. He did not state in so many words that the agreement contained a provision to that effect, but when asked what he was to do if he found gold, he replied that he was to dig it out; and he gave an affirmative answer to the question, inquiring if he was to develop the claim. It is doubtless to be understood from his testimony that he construed the agreement as requiring him not only to prospect for a mine, but if one was found to develop and work it for the joint benefit of all the parties. Nevertheless, that may have been merely his construction of an agreement that he should go to the country mentioned and prospect for the joint advantage of himself and those furnishing the money. Mr. Keenan testified that there was nothing in the agreement about developing and working a mine, if one should be discovered.

On his examination in chief, Young gave his recollection of the agreement as follows: "As far as I understood the contents of the agreement was, they furnished me with money, and they was to pay my family while I was away fourteen dollars per month, and if I found anything they were to each have one share, and I was to have three shares of whatever I might find." On cross-examination, he assented to the following statement of the written contract: "That in consideration of seven hundred dollars furnished to you, and the further consideration of fourteen dollars a month to be furnished to your family for one year, that you agreed to go into Alaska and prospect for gold, and if properties were found, that you was to receive three-tenths and each of the others one-tenth?" He was then asked if the seven hundred dollars was not all the other parties agreed to furnish outside of the monthly payment to his family, and he replied: "That is all that I understood." It elsewhere appears that as Mr. Gosling paid in two hundred dollars, he was to be entitled to two shares.

Mr Park's version of the agreement was that Mr. Young was to go to Alaska to prospect, and if anything was found he was to have three-tenths, Gosling...