Kingsbury v. Tharp

• Decision Date: 29 April 1886
• Court: Michigan Supreme Court
• Parties: KINGSBURY v. THARP.

28 N.W. 74

61 Mich. 216

KINGSBURY v. THARP.

Supreme Court of Michigan

April 29, 1886

Error to Cass.

Howell & Carr, for plaintiff and appellant.

Harsen D. Smith, for defendant.

CHAMPLIN, J.

Trover to recover the value of 22 sheep. In June, 1883, Eugene Leach and defendant, Tharp, entered into an agreement for dealing in live-stock. Tharp was to put in $50, and to furnish his horse and buggy, and Leach was to furnish the balance of the capital. Each was to devote his time to the business, and they were to share equally in the profits and losses of the enterprise. After they had commenced business a day or two Tharp told Leach that he had stock on his own place that he could put in for the $50, and that would save him getting the money from some other place. It was then agreed that he should put in a cow and some sheep, and when the time came for shipping the stock to market in Chicago he put in a cow at the agreed price of $30, and the sheep he was to put in the next load, or make up the amount in money. Leach and Tharp bought together and shipped one car-load, half sheep and half cattle, and bought one car-load of sheep which were not shipped. A portion of the sheep last mentioned were purchased before the first car-load was shipped, and the balance afterwards. No new arrangement was made with reference to the last car-load. No firm name was agreed upon or used, and no time fixed when their arrangement should terminate. Both Leach and Tharp were insolvent. To furnish capital to purchase stock before the first car -load was shipped, Leach obtained money from the bank by draft on E. Mallory Bros., accompanied by bill of lading. To obtain money to purchase more sheep, Leach borrowed of the bank upon a note signed by Leach and plaintiff for $200, and Leach and Tharp went out into the country, and bought a sufficient number of sheep to make another car-load. Leach who was one of plaintiff's witnesses, testified "Tharp and I were partners in the profits and losses. He was to stand half the losses,--that was the ageeement; and he and I were to buy the sheep together. We were to go around the country together and pick up the sheep. The capital I put in I borrowed of the bank. The $200 got on George Kingsbury's and my note I put in my pocket, and took with me, and used it in paying for the sheep as far as it went and the next day I went into the bank and drew a check on Mallory Bros.

While the sheep were in the Michigan Central Railroad Company's stockyards at Cassopolis, William Graham attached Leach's interest in the sheep for a debt owing by Leach to Graham. Leach also owed an individual debt to Charles Henry Kingsbury, of $52.36, and in order to obtain a release of the attachment, and secure the two Kingsburys, it was arranged between Leach, Charles H. Kingsbury, and George M. Kingsbury that Charles Henry Kingsbury should take a bill of sale to secure himself and George M. for the note he had signed, and also to secure himself for joining in a note with Leach to Graham for the amount of the attachment debt for $48.25, making the total amount of the indebtedness secured by the bill of sale $300.61. Tharp was not present when the bill of sale was given to Charles Henry, Kingsbury. Nothing was said to him about it before it was given. On the day the sheep were attached Leach told Graham that he and Tharp were partners in those sheep. He also told William Sears, from whom some of these sheep were bought, that they were partnership sheep. Leach gave Sears a check on the First National Bank of Cassopolis for the sheep bought of him, signed "E. LEACH," which was dishonored, and not paid. David Rench testified that Leach told him that he and Tharp were in partnership buying sheep together, The bill of sale was as follows:

"CASSOPOLIS, MICH., July 6, 1885.

"For value received I hereby grant, bargain, and sell to Chas. H. Kingsbury the following goods and chattels, viz.: one hundred and twelve sheep and lambs, now in the Michigan Central stock-y'ds, in Cassopolis, and three head of sheep now on the farm of Frank Tietsort, in La Grange township; and I hereby put the said Chas. H. Kingsbury in full possession of said goods and chattels by the delivery of this bill of sale.

"E. LEACH," [Seal.]

The next day after the date of this bill of sale Leach and Kingsbury sold to Charles Zeller 93 of the sheep in the stock-yards for $263.43, which money he paid to Kingsbury a day or two afterwards. Tharp and Leach were present, and helped weigh out the sheep sold to Zeller, and, according to some of the witnesses, Tharp was present in the bank when the money was paid over to Kingsbury. Tharp denies this, and all knowledge of what was done with the money. He says Leach told him afterwards that he used the money to pay an indebtedness of his to the bank. After the sale of Zeller, the remaining sheep were, either by Kingsbury's or by Leach's direction, driven to the farm of Tietsort, and put in pasture with the other sheep, where they remained until sold by Tharp to a man from South Bend; but whether before or after the assignment of the bill of sale by Charles H. to George M. Kingsbury, which bears date July 31st, 1885, does not appear from this record. The sale by Tharp is the conversion complained of, and for which suit is brought.

The main question in the case is whether Leach and Tharp were partners in the sheep in question, and, if so, whether Tharp ratified the giving of the bill of sale to Kingsbury. The learned circuit judge charged the jury, as matter of law that Leach and Tharp were partners, and that the sheep in...