Mapel v. Long-Bell Lumber Co.

• Decision Date: 14 October 1924
• Docket Number: Case Number: 14552
• Citation: 229 P. 793,1924 OK 925,103 Okla. 249
• Parties: MAPEL et al. v. LONG-BELL LUMBER CO. et al.
• Court: Oklahoma Supreme Court

1924 OK 925

229 P. 793

103 Okla. 249

MAPEL et al. v. LONG-BELL LUMBER CO. et al.

Case Number: 14552

Supreme Court of Oklahoma

Decided: October 14, 1924

Syllabus

¶0 1. Partnership--Existence of Relation--Burden of Proof--Jury Question.

The burden of proving the existence of a partnership is ordinarily on him who alleges and relies on the fact of its existence. It is the province of the jury to decide whether those facts exist which show that a partnership has been formed.

2. Same--Liability to Third Persons.

It is not necessary, as regards liability to third persons, that parties know that their contract in law creates a partnership, but it is enough that by contract or conduct, or both, they have in law engaged in a partnership venture.

3. Same--Presumption of Partnership Relation.

When the fact appears that parties associated themselves together and incurred liabilities in the conduct of a business under a certain name, the legal presumption is that they are governed by the general rule and are liable as partners, and the burden is on them to prove that they are duly incorporated or that they fall under some exception to the general rule.

4. Mechanics' Liens--Assignment Before Filing Statement.

Section 7477, Comp. Stat. 1921, does not require a laborer or materialman to file a statement of his claim of lien before it is assignable.

5. Same--Lien Sustained.

Record examined, and held, that the finding of the trial court that the plaintiff and interveners in this cause have a lien on the lands and tenements in controversy arising from the mechanics' and materialmen's lien law of this state to secure the payment of their indebtedness is sufficiently supported by the evidence.

Herman M. Shirley, O. E. Dawes, and Edward Hirsh, for plaintiffs in error.

Wilson & Roe, for defendants in error.

PINKHAM, C.

¶1 This is an appeal from the judgment of the district court of Tillman county in a case in which the defendant in error Long-Bell Lumber Company was plaintiff, and O. E. Mapel, and others, alleged to be doing business as Oil City Laundry, were defendants, and the Service Lumber Company, Grandfield Lumber & Supply Company, and Harris-Deaver Lumber Company, were interveners. The cause involved the claims of the plaintiff Long-Bell Lumber Company and the interveners for the amounts stated in their lien statements for furnishing lumber and material for the construction of a laundry. All the defendants filed their verified answers denying that they were partners as alleged in the petition of the plaintiff and of the interveners, except the defendant, E. C. Frazier. The case was tried to a jury and after verdict rendered in favor of the plaintiff and the interveners a money judgment was rendered by the court in favor of the plaintiff and each of the interveners in the amount of their respective claims against the Oil City Laundry, a partnership composed of the defendants, O. E. Mapel, R. A. Rasmuson, Alexander Hamilton, George W. Goehler, W. E. Young, and E. C. Frazier, all of whom, it appears, were personally served with summons in the case. The court further found that the plaintiff Long-Bell Lumber Company, has a lien on the lands and tenements described in its petition to secure the payment of its said indebtedness, interest, and attorneys' fees and costs, said property being described as follows, towit: The north-half of lots 7, 8, 9, 10, 11, and 12, of block 60, Perry addition, to the town of Grandfield, Okla., and that each of the cross-petitioners, Grandfield Lumber & Supply Company, Service Lumber Company, and Harris-Deaver Lumber Company have a lien on said lands and tenements to secure the payment of their above described indebtedness, interest, attorneys' fees and costs, said liens and all of them arising from the mechanics' and materialmen's lien law of the state of Oklahoma.

¶2 From this judgment the defendants O. E. Mapel, R. A. Rasmuson, Alexander Hamilton, E. C. Frazier, and George W. Goehler have perfected their appeal to this court. Counsel for plaintiffs in error in their brief raise no questions as to the proper admission or refusal of evidence or the giving or failing to give instructions. It is contended by counsel for plaintiffs in error in their brief that the evidence was insufficient to show that the Oil City Laundry was a partnership. The record discloses that there was a business concern at Grandfield operating under the name and style of "Oil City Laundry", that it bought lumber and other material from the plaintiff and the interveners, and used the same in the construction of a laundry building and other improvements on the lots in question, and that the building was completed and the laundry business carried on therein. All of the testimony in the case relating to the question of partnership was introduced by the various lumber companies--the plaintiff and interveners--and none of the defendants produced any evidence sufficient to negative the existence of a partnership doing business as the "Oil City Laundry." In connection with the accounts of plaintiff and the interveners the original lien statements under oath showing the amount due for materials sold the Oil City Laundry were introduced. All of these accounts were testified to as correct except that the manager of the Grandfield Lumber & Supply Company testified that defendants were entitled to certain credits accruing since its statement was filed. There was no dispute as to the correctness of the accounts. The manager of the plaintiff company testified that he had a number of conversations with several of the defendants with reference to the lumber furnished to the Oil City Laundry by his company, and that none of them at any time denied that they were partners in the laundry business, that the defendants, O. E. Mapel, R. A. Rasmuson, Alexander Hamilton, and George W. Goehler, had executed a note as collateral security for the indebtedness, and that the defendant Mapel, who owned the lots upon which the laundry building was erected, had full knowledge of all the facts in connection with the purchase and use of the lumber on the said lots. This witness testified that he talked to Mr. Rasmuson about the account and the partnership many time, that Rasmuson claimed to be interested in it and assumed responsibility, and talked about paying it, and promised him about 25 times they would make arrangements to pay it, and that none of the parties ever disputed the fact that they were partners in the business.

¶3 The testimony of each of the representatives of the other lumber companies who sold their materials to the Oil City Laundry was to the same effect. None of the defendants testified in the case. The burden of proving the existence of a partnership is ordinarily on him who alleges and relies on the fact of its existence. It is the province of the jury to decide whether those facts exist which show that a partnership has been formed. 20 R. C. L. 849. It is urged that with respect to the defendant George W. Goehler, the evidence fails to show that he was a member of the partnership, and our attention is directed to the testimony of the manager of plaintiff, who stated that he "did not know Mr. Goehler in the deal at all." It appears, however, that while the suit was pending Mr. Goehler joined with several of his codefendants in executing his note to the plaintiff as collateral security for the purpose of continuing the case for a year. In the absence of any explanation by him or on his behalf in so doing the jury doubtless inferred that he did so because he was a partner in the enterprise. We do not think the fact that the plaintiff or the interveners were, at the time of the sale of their materials to this concern, aware of the identity of all the members of the firm carrying on the Oil City Laundry business would operate to release one from liability to a third person who is subsequently discovered to be a partner in the concern. "The business intimacy between persons and their conduct in connection with a particular enterprise may be admissible to prove partnership between them, although each item of such evidence may have lent but slight weight when separately considered." 30 Cyc. 404.

¶4 In McDonald v. Clough et al. (Colo.) 146 P. 121, it is said:

"The fact that the plaintiff sold goods to a partnership in ignorance at the time of the sale of the existence of a secret partner will not prevent recovery against the secret party for the goods sold."

¶5 The question of whether at the time the lumber and building material was furnished by the plaintiff and interveners for the purpose of constructing the building for the said Oil City Laundry there was a partnership existing between two or more defendants for the purpose of purchasing material and constructing the laundry building was submitted to the jury under proper instructions, and their verdict involved a finding that the Oil City Laundry was a partnership composed of the defendants. We think the evidence in this case leaves little doubt but...