Ogallala Fertilizer Co. v. Salsbery

• Decision Date: 12 March 1971
• Docket Number: No. 37694,37694
• Citation: 186 Neb. 537,184 N.W.2d 729
• Parties: OGALLALA FERTILIZER COMPANY, Appellant, v. Marcia H. SALSBERY, Appellee.
• Court: Nebraska Supreme Court

Page 729

184 N.W.2d 729

186 Neb. 537

OGALLALA FERTILIZER COMPANY, Appellant, v. Marcia H. SALSBERY, Appellee.

No. 37694.

Supreme Court of Nebraska.

March 12, 1971.

Syllabus by the Court

1. Benefit to the firm is generally held insufficient basis on which to predicate firm liability for a transaction entered into by a partner in his individual capacity.

2. Where the partners are disclosed and known to a party contracting, and the contract is signed by only one partner who contracts in his own behalf, the other partners are not bound thereby.

3. Denial of the right to file an amended pleading not tending to promote

the interests of justice is not an abuse of discretion.

Frank B. Svoboda, Ogallala, for appellant.

Baskins, Baskins & Schneider, North Platte, for appellee.

Heard before WHITE, C.J., and CARTER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

NEWTON, Justice.

This is an action on an account brought against Marcia H. Salsbery, the surviving member of an alleged partnership. Summary judgment was entered for the defendant. We affirm the judgment of the district court.

Herbert and Marcia H. Salsbery were husband and wife. Marcia owned a quarter section of land adjoining another quarter owned by her father. They resided on the quarter owned by Marcia and farmed both quarters. A joint bank account was maintained in which the farm proceeds were deposited and upon which both wrote checks for farm and personal bills, including mortgage indebtedness on Marcia's land. Marcia signed, as guarantor, a $37,400 note of her husband to a bank and they were jointly liable on a second note of $4,459.92. Herbert Salsbery died in the fall of 1967.

Herbert arranged for the purchase of fertilizer on credit from plaintiff. The fertilizer was charged to Herbert Salsbery and was delivered to, and used at, the farm during the year 1967. Defendant at times called plaintiff to ask for delivery of portions of the fertilizer and was consequently aware of its purchase, delivery, and use. Defendant conceded that she shared in farm profits and losses. There is no direct evidence of the actual understanding or arrangement between husband and wife.

The purchase, delivery, and use of the fertilizer, as above outlined, and the amount due are not disputed. Plaintiff's petition alleges the insolvency of the estate of Herbert Salsbery, deceased, and the absence of any partnership property. Questions presented in regard to the propriety of the entry of summary judgment necessarily include the existence of a partnership, as distinguished from an ordinary husband and wife relationship, and the liability of the alleged partnership for the indebtedness.

Were Herbert and Marcia H. Salsbery partners in their farming operations? As husband and wife, they, like many other farm couples, could have well maintained a joint checking account upon which they both drew to pay farm and personal bills and in which the farm income was deposited. In this sense, both would share in the profits or losses from the farming enterprise as do business partners. Yet this, being a quite usual marital arrangement, standing alone, is insufficient to establish a partnership, it being quite consonant with a husband's duty to support his wife, and a wife's duty as a helpmate. There were other factors present in this instance. The wife owned the land on which they lived and which comprised part of the land farmed. There is no indication of the existence of a landlord and tenant relationship. In addition, land belonging to Marcia's father was included in the farm operation. Presumably this was rented but the record is barren of any evidence in that regard. In any event, this land too comprised a part of the farm operation and is not shown to have been a separate and distinct undertaking on the part of Herbert in which Marcia did not share. The fact that Marcia signed notes with her husband is not conclusive either way without further explanation of the circumstances. It is also apparent that in her deposition defendant carefully avoided and, in fact, refused to give any details of the understanding or arrangement existing between her and her husband. Ownership of the farm machinery and equipment and its disposition is not disclosed by this record. The same is true of crops raised in 1967. Presumably the bank holding a security interest in some, or all, of this property had a voice in such matters, but whether this property was handled through or outside the estate of Herbert Salsbery, deceased, does not appear. Under the circumstances we find that a fact question is presented relative to the existence or nonexistence of a partnership.

George Olson, a partner in the plaintiff firm, stated he dealt with Herb Salsbery, extended credit to him, charged the fertilizer to him, and after his death, filed a claim for the amount due against his estate. This raises a strong presumption that plaintiff dealt with Herbert Salsbery individually and not as a partner. Under such circumstances, the...