M'Carthy v. Nash

• Decision Date: 01 January 1869
• Citation: 14 Minn. 95
• Parties: JEREMIAH McCARTHY v. PATRICK NASH.
• Court: Minnesota Supreme Court

Page 95

14 Minn. 95

JEREMIAH McCARTHY

v. PATRICK NASH.

Supreme Court of Minnesota.

Appeal from an order of the court of common pleas, Ramsey county, refusing a new trial.

The action was on an agreement between the parties, by which defendant agreed to pay the debts of the firm of "J. C. McCarthy & Co.," of which plaintiff was a member, and to indemnify and save plaintiff harmless therefrom. The breach alleged was in the failure to pay a debt of that firm due to a firm styled "Schwab, McQuaid & Smith," which plaintiff, after judgment against the former firm, paid. Plaintiff had a verdict.

Brisbin & Palmer, for appellant, cited:

Lampreys, for respondent, cited:

BERRY, J.

To maintain this action it was sufficient for the plaintiff, under the issues made by the pleadings, to prove that the firm of J. C. McCarthy & Co. were liable to Schwab, McQuaid & Smith for the bill of goods alleged to have been purchased of the latter by the former, and that the plaintiff had been compelled to pay for and had paid for the same. There was testimony tending to show that there was a firm styled Schwab, McQuaid & Smith; that it was composed of Charles H. Schwab, Edward McQuaid, and John B. Smith, as alleged in the complaint, (if this be important;) that said firm sold the bill of goods aforesaid to J. C. McCarthy & Co.; that the goods ordered were all delivered; that a portion of them were delivered to and received by J. C. McCarthy & Co. before the plaintiff sold his interest to the defendant, and that the balance was delivered to Nash & Murphy, the successors of J. C. McCarthy & Co.; Nash being the defendant, and Murphy the former partner of the plaintiff. The testimony also tended to show that Schwab, McQuaid & Smith had brought suit against J. C. McCarthy & Co. for the bill of goods aforesaid; had recovered judgment and issued execution, and the plaintiff had paid the judgment. The court instructed the jury that if they "found that Schwab, McQuaid & Smith held themselves out as a copartnership firm, it would be sufficient for the purposes of this action to establish a copartnership." This instruction is to be considered with reference to the evidence in the case, and it appears from the return, which contains all the testimony, that no evidence was offered tending to show that Schwab, McQuaid & Smith were not partners; while there was evidence tending to show that they held themselves out as partners, and conducted business as partners. It follows that if holding themselves out as partners under such circumstances was prima facie evidence of partnership, the instruction was correct in this case. Admitting, for argument's sake, what is contended for by the plaintiff's counsel, that the plaintiff, as to the proof required to establish a partnership stands in the same position as would Schwab, McQuaid & Smith had they brought an action against the defendant, we are of opinion that the fact that they held themselves out as partners in the transaction of their business would prima facie establish a partnership, even in that case. "The evidence which would prove a partnership against the partners in favor of other persons is sufficient prima facie to prove it in actions between the partners alone, and also in actions in their favor against third persons." 2 Greenl. Ev. § 477; Stearns v. Haven, 14 Vt. 540. Holding themselves out as partners in the transaction of business makes persons liable as partners to third persons, and according to the rule laid down by Prof. Greenleaf, if holding themselves out as partners is evidence of partnership in an action against, it is prima facie evidence of partnership in an action by, the persons so holding themselves out, and of course by any person occupying (as it is claimed the plaintiff does) their position. There was therefore no error in this instruction.

The defendant requested the court to instruct the jury as follows:

"Third. If the jury find that the alleged sale by Schwab, McQuaid & Smith, and purchase by J. C. McCarthy & Co., was verbal, and that no money was paid at the time, and no delivery made, it was void, and no liability could arise therefrom.

"Fourth. If there was no memorandum of the said sale subscribed by the party, no earnest money paid, and no delivery at the time of the transaction alleged to have taken place September 11, 1866, a subsequent delivery...