Holbrook & Bro. v. Oberne, McDanield & Co.

• Decision Date: 14 June 1881
• Citation: 9 N.W. 291,56 Iowa 324
• Parties: HOLBROOK & BRO. v. OBERNE, MCDANIELD & CO. ET AL
• Court: Iowa Supreme Court

9 N.W. 291

56 Iowa 324

HOLBROOK & BRO. v. OBERNE, MCDANIELD & CO. ET AL

Supreme Court of Iowa, Des Moines

June 14, 1881

Appeal from Pottawattamie District Court.

ACTION AT LAW. Trial to the court, judgment for the plaintiffs, and defendants appeal.

AFFIRMED.

Phillips Goode & Phillips, for appellants.

Monk & Selleck, for appellees.

OPINION

SEEVERS J. The contention of the parties may be thus stated The plaintiffs were the owners of a tannery and claim to have employed one Horning to manage and operate the same for them; that certain hides were purchased to be manufactured into leather at said tannery, and that Horning without the knowledge or consent of the plaintiffs sold said hides to the defendants, and this action was brought to recover the value thereof.

The defendants paid Horning for the hides and claim they were justified in doing so because Horning was a partner of plaintiffs in said business, or, if this be not so, Horning was the general agent of the plaintiffs, and that defendants were fully warranted from the acts and conduct of the plaintiffs in believing Horning had authority to sell the hides and receive the proceeds. As to these questions we have to say:

I. As to the partnership. There was not in fact any contract of partnership entered into between the plaintiffs and Horning. The plaintiffs were unacquainted with the tanning business. Horning was, and he was employed by plaintiffs to manage the business, the agreement being that he was to receive for his services twenty-five dollars per month and one-half the profits, but he was not to share in the losses.

We think the court below rightly held this did not make Horning a partner in the business with the plaintiffs. At most Horning was an employe, and was to receive a share of the profits as a part of his compensation for conducting the business. Such a person is not a partner. Bradley v. White et al., 51 Mass. 303, 10 Met. 303; Collyer on Partnership, § 34 and authorities cited.

II. The evidence satisfactorily shows Horning was the general agent of the plaintiffs to purchase hides, superintend the manufacture of the same into leather, and to generally manage the tanning business, but the evidence fails to show Horning had any authority to sell hides after the same had been purchased for use at the tannery, except that he sold a lot of hides to a branch house of the defendants at Sioux City. Such sale was made...