Hefferlin v. Karlman
| Decision Date | 16 November 1903 |
| Citation | 74 P. 201,29 Mont. 139 |
| Parties | HEFFERLIN et al. v. KARLMAN et al. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Park County; Frank Henry, Judge.
Action by John W. Hefferlin and others against G. W. Karlman and another, copartners as Karlman & Jennings. From a judgment for plaintiffs, defendants appeal. Modified in part, and reversed in part.
J. J McHatton, for appellants.
John T Smith, for respondents.
This is an appeal from a judgment entered against defendants upon the verdict of a jury, and from an order denying their motion for a new trial.
The complaint is in two counts, which we shall consider separately:
1. In the first count plaintiffs allege themselves to be copartners, and charge that a like relation exists between defendants. Then follows an allegation that between the 15th day of September, 1899, and the 21st day of December, 1899 the plaintiffs sold and delivered to the defendants, at their request, goods, wares, and merchandise amounting to, and of the value of, $1,679.74, which sum the defendants agreed to pay plaintiffs, and that no part thereof has been paid. The defendants make general denial to this count, except that they admit themselves to be co-partners.
Defendants assert that the evidence is insufficient to sustain the verdict. A discussion of the evidence in detail will serve no useful purpose. Suffice it to say that we have examined the record carefully, and find a substantial conflict upon all disputed points. The defendants, Karlman & Jennings, were railroad at Trial Creek, in Park County. At the trial the plaintiffs claimed that one Dunlevy was defendants' foreman, and that, as such foreman, he opened an account with them on defendants' credit, and with the understanding that Karlman, the partner immediately in charge of the business at Trial Creek, would make definite arrangements concerning the account; that in about two weeks thereafter Karlman confirmed what Dunlevy had said, and authorized plaintiffs to furnish him what he wanted for his "camp." It was necessary to provide for a number of men who were in Dunlevy's charge. Plaintiffs introduced evidence tending to show that both Karlman and Jennings, after the commencement of the suit, acknowledged the correctness of the account, and said it should be paid. Plaintiffs' proof tended to show that Karlman's statements and agreements amounted to an original promise on the part of Karlman & Jennings ___ in other words, that defendants were the principals who dealt with plaintiffs. Defendants claimed that Dunlevy was not their foreman, but was merely a subcontractor, and denied that they, or either of them, had ever authorized the running of the account, or promised to pay it, or acknowledged its correctness. They contended that plaintiffs opened that account, or promises to pay it, or acknowledged its correctness. They contended that plaintiffs opened the account with Dunlevy as principal, and should look to him for their pay. The jury heard the testimony, observed the witness upon the stand, and found for the plaintiffs. This court will not undertake to disturb the verdict of a jury, predicated upon a substantial conflict in the evidence. Nelson v. Great Northern Ry. Co., 28 Mont. --, 72 P. 642, and cases cited. We shall therefore pass to some of the alleged errors of law occurring at the trial to which defendants took exception.
Counsel for plaintiffs offered in evidence an account book denominated "Exhibit A," to which defendants objected on the ground that no sufficient foundation had been laid to warrant its introduction. Then this question was asked: "I will ask you, Mr. Hefferlin, whether or not this account book was kept in the regular course of business, and was made up at the time the items were purchased, or immediately thereafter?" This question was objected to on the ground that it is leading. The witness answered, "It was; yes, sir," and proceeded to testify at length concerning his method of keeping books as well us upon other matters. After a considerable period of time the book was offered in evidence again without objection on part of the defendants. The question, however, was merely preliminary, and it was within the sound discretion of the court to permit it to be asked. Speaking on a similar point the Supreme Court of California said: Moran v. Abbey, 63 Cal.56.
Defendants also contend that the court committed error in allowing plaintiffs' witness to testify to conversations had with defendant Karlman, because, as they assert, "neither one of the partners has a right to assume any obligations of a third person, or promise to pay the indebtedness of a third person, so as to bind his copartner." Under plaintiffs' theory of the case, defendants did not assume any obligation of a third person, nor did they agree to pay a third person indebtedness. Plaintiffs contend that the action of Karlman in agreeing to pay for all of Dunlevy's purchases was an original promise on the part of Karlman & Jennings. The goods which Dunlevy bought before Karlman came to plaintiff's store were all paid for by Karlman on December 2d. The other goods were bought after the alleged arrangement between the plaintiffs and Karlman was made. Our Civil Code (section 3231) provides: "Every general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his co-partners by an agreement in writing." Section 3233 provides: "A partner is not bound by any act of co-partner, in bad faith toward him, though within the scope of the partner's powers, except in favor of persons who have in good faith parted with value in reliance upon such act." It is not asserted by defendants that any of the acts of which they complain were tainted with bad faith, nor is there any allegation in defendants' pleadings that their partnership was not a general one. So far as the record discloses, they were general partners. "Every general partner is liable to third persons for all the obligations of the partnership, jointly with his co-partners." Civ. Code, § 3250. It was within the province of the jury to determine from the evidence adduced whether the debt created was in the usual and ordinary course of defendants' business, and within the scope of their partnership adventure; and, if it was, the individual member who made the purchases had lawful authority to bind his partner thereby. Dowling v. National Exchange Bank, 145 U.S. 516, 12 S.Ct. 928, 36 L.Ed. 795. "The general principle which lies at the foundation of a partner's liability is that every partners by his acts or contracts in relation to the same extent as if he held full powers of attorney from all the members." Manville v. Parks (Colo.) 2 Pac. 212.
Defendants say that the court erred in giving instruction No. 1, in which the jury are told that if they find from the evidence that plaintiff did sell and deliver to the defendants, at their request, goods, wares, and merchandise, as set forth in the complaint, and that the defendants had not paid therefor they should find for the plaintiff, state in their verdict the value of the goods sold, not to exceed the sum mentioned in the first count, and allow interest thereon at the rate of 8 per cent. per annum from December 22, 1899. Special objection is made to that portion of the instruction which refers to the allowance of interest. This involves a question of considerable importance. As observed above, the suit is brought upon an open account for goods, wares, and merchandise alleged to have been sold to defendants by plaintiffs between September 15, 1899, and December 21, 1899. So far as the record shows, plaintiffs made no demand upon defendants for payment after December 21st and prior to the commencement of this suit. Of course, the beginning of the suit was a demand; but we are unable to ascertain from the record when it was begun, as the case was tried upon the amended complaint, which was filed March 17, 1900. We have two sections in the Civil Code which treat of interest upon accounts. Section 2585, as amended by act approved February 28, 1899 (Sess. Laws 1899, p. 125), reads as follows: "Unless there is an express contract in writing fixing a different rate, interest is payable on all moneys at the rate of eight per cent. per annum after they become due on any instrument of writing except a judgment, and accounts stated, and on moneys lent or due on any settlement of writing except a judgment, and account stated, and on moneys lent or due on any settlement of accounts from the date on which the balance is ascertained, and on moneys received to the use of another and detained from him. ***" This section, it will be noticed, in so far...
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