Howell v. Wilcox & Gibbs Sewing-Mach. Co.

• Decision Date: 07 December 1881
• Citation: 12 Neb. 177,10 N.W. 700
• Parties: HOWELL v. WILCOX & GIBBS SEWING-MACHINE CO.
• Court: Nebraska Supreme Court

12 Neb. 177

10 N.W. 700

HOWELL

v.WILCOX & GIBBS SEWING-MACHINE CO.

Supreme Court of Nebraska.

Filed December 7, 1881.

Error from Douglas county.

Kennedy & Gilbert, for plaintiffs.

C. J. Greene, for defendant.

LAKE, J.

In November, 1876, Howell, one of the plaintiffs in error, in his individual capacity and for himself alone, entered into an arrangement with the defendant in error to canvass for the sale and sell its sewing-machines in this state and in the territories of Wyoming and Utah. For a number of the machines and other property received by him from the company in pursuance of this arrangement Howell incurred the indebtedness for which the notes in controversy were finally given in satisfaction of his individual notes which had matured. Shortly after Howell had made this arrangement and incurred this indebtedness he entered into negotiations with his co-plaintiff in error, which resulted in their becoming associated under the firm name of S. J. Howell & Co. for the prosecution of that portion of the business relating to Wyoming and Utah; Howell's relation to the sewing-machine company remaining unchanged, and he retaining that branch of the business to be done in Nebraska to himself. Thus far the facts are conceded or abundantly proved, and there is really no controversy between the parties respecting them. And it is also established by undisputed evidence that, owing to the failure of Howell to obtain from the sewing-machine company the requisite number of machines to enable Gibson, who was to take personal charge of the business in Colorado and Utah, to prosecute with vigor the work as he had arranged, not a single machine was sold in either of those territories, and nothing beyond mere preparation by way of correspondence and distribution of printed circulars was done towards carrying out the scheme for which the firm of S. J. Howell & Co. was formed.

The first error assigned, and the one most relied on, is that the verdict of the jury is not sustained by sufficient evidence, and its consideration will require a brief examination of the pleadings and the testimony bearing upon the issues thereby formed. We find that the notes on which the action was brought were executed in the name of S. J. Howell & Co. This action is against Howell and Gibson in their individual capacities. As before shown, they were given in renewal of the individual notes of Howell alone, and for an indebtedness to which Gibson was not, originally, at least, a party. In his separate answer, Gibson, after reciting the before-mentioned arrangement between the sewing-machine company and Howell, alleges that he “never, in any manner, incurred nor assumed any liability either in respect to the purchase of said machines, or upon said promissory notes, or either of them; and never, in any manner, authorized or consented to the execution of said promissory notes, or either of them, in the name of S. J. Howell & Co.,” etc.

To this answer there is no reply, and we might dispose of the case as to Gibson upon the ground that, by the admitted facts, no liability is shown; but we prefer to examine this question by the light of the testimony. It being conceded that Gibson was not in any manner connected with the original transaction between Howell and the sewing-machine company, it follows that he could not, without his individual assent, be rendered liable for Howell's indebtedness on that account. It is a conceded fact that these renewal notes were actually signed by Howell. Unless duly authorized by Gibson, Howell had no right to thus use the name of S. J. Howell & Co. As was well said by the district judge, in his charge to the jury: “The notes, having been given for a debt incurred prior to the formation of any connection between Messrs. Howell and Gibson, are not a valid claim against Mr. Gibson, unless he authorized the signing of the firm name, or ratified Mr. Howell's action after learning that he had so signed.”

The testimony chiefly relied on to show that Gibson authorized this use of the firm name is that of two witnesses, Hemmingway and Tallman, taken by deposition. The first of these witnesses was in the employ of the defendant in error at Omaha before and at the time Howell gave the first notes. It is quite evident, from the testimony, that in giving it she was laboring to connect Gibson with them, and to show that he regarded himself as jointly liable with Howell thereon. Her testimony is as to what transpired before the notes in dispute were given. For instance, she swears that she called upon both Howell and Gibson for payment “on account of indebtedness to the company for machines sold,” by turning over some of the machines then on hand, and that “Mr. Gibson said they had already turned over all they could spare;” that “they complained of hard times, and a general reduction in prices. Mr. Gibson said that he thought the company ought to help, but that if it would not then we can stand it ourselves.” She says: “I urged payment, and Mr. Gibson said he had no loose money by them. Between them, they said, they would like to give me new notes. Whether Mr. Howell or Mr. Gibson first said this I don't know. They were both together, and we talked that matter over between us, and we all discussed the question of new notes to be given by them for an extension. In speaking of giving new notes, they said ‘we.’ Howell did not say ‘I,’ nor did Gibson speak of them as being Howell's notes alone. Mr. Gibson wanted the company to help them by taking notes for a less amount,--that is, to deduct something from what I supposed were Howell's old notes,--and it was in that way that he wanted the company to help them, and said that if the company would not do so we can stand it ourselves. I would not do this. Then they said they would...