Orofino Rochdale Co. v. Fred A. Shore Lumber Co.
| Decision Date | 08 January 1927 |
| Citation | 43 Idaho 425,252 P. 487 |
| Parties | OROFINO ROCHDALE COMPANY, a Corporation, Appellant, v. FRED A. SHORE LUMBER COMPANY, a Corpartnership Composed of FRED A. SHORE, JOHN EARLSON and J. H. EHRMANNTRAUT, FRED A. SHORE, JOHN EARLSON and J. H. EHRMANNTRAUT, as Individuals, and JAMES W. BLAKE, Assignee of FRED A. SHORE LUMBER COMPANY, Respondents |
| Court | Idaho Supreme Court |
PARTNERSHIP-PARTNER'S LIABILITY TO CREDITOR-REPRESENTATIONS-REPUTATION OF PARTNERSHIP-EVIDENCE-ADMISSION OF PARTNERSHIP.
1. In order to create liability as partner within C. S., sec. 5828 providing that one representing himself as partner is liable to person giving credit on faith of representation, there must be proof of representations made and coming to the person extending credit on faith of which credit was given.
2. General reputation or common report cannot be shown to establish partnership relation, except in connection with duly established facts that person sought to be charged has permitted or impliedly consented to be held out as partner and that such holding out induced person extending credit to become creditor.
3. Testimony by creditor relative to alleged partner having given orders not to charge any more to partnership and that charges were thereafter made to him personally did not establish previous partnership relation, so as to create liability, within C. S., sec. 5828, before such time.
4. Admission by one of alleged partners as to existence of partnership is incompetent to prove that relation as against others.
5. Evidence, in action on account for goods sold and delivered held insufficient to establish partnership relation of individual defendants.
APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.
Action on account for goods sold and delivered. Judgment for plaintiff against Fred A. Shore Lumber Co.; judgment of nonsuit as to defendants Earlson, Ehrmanntraut and Blake. Affirmed.
Judgment affirmed, costs awarded to respondents.
Tannahill & Leeper, for Appellant.
The court erred in excluding evidence of the existence of a common report in the vicinity of the operations. (Gaffney v. Hoyt, 2 Idaho 199, 10 P. 34.)
It was error to grant motion for a nonsuit as to defendants Earlson and Ehrmanntraut, because each of them had made admissions publicly that they were partners in this venture, which was undisputed. Admissions are competent and satisfactory evidence of the existence of a partnership. (Harrison v Peabody, 34 Cal. 178; Nitsson v. McDole, 73 Wash. 312, 131 P. 1141; Cobb v. Martin, 32 Okla. 588, 123 P. 422; Anderson v. Adams, 43 Ore. 621, 74 P. 215; Midgley v. Campbell Building Co., 38 Utah 293, 112 P. 820; Lyons v. Kitchell, 18 N.M. 82, Ann. Cas. 1915C, 671, 134 P. 213.)
Aside from the admissions of partnership, there was evidence of a joint enterprise sufficient to let the case go to the jury. (C. S., secs. 5818, 5819; 20 R. C. L., 823, 828, 829; Irvine Muir Lumber Co. v. Holmes, 26 Cal.App. 453, 147 P. 229; Quinn v. Quinn, 81 Cal. 14, 22 P. 264.)
Moore & Moore, for Respondent John Earlson.
One cannot be held liable as a copartner of another upon the unauthorized statements of such other person, unless the person denying the partnership has, by some act or failure to act, misled a third person to his injury, who has relied upon such representation. (Bogue Supply Co. v. Davis, 36 Idaho 249, 210 P. 577; Drexel Furniture Co. v. Jacobs, 169 Ark. 1211, 278 S.W. 16.)
Ostensible partnership cannot be established by general reputation and no presumption of partnership can arise from reputation alone, however long continued. (Anfenson v. Banks, 180 Iowa 1066, 163 N.W. 608.)
Cox & Martin for Respondent Ehrmanntraut.
The pleading of earnings or profits for the repayment of borrowed money does not create a partnership. (Auditorium Co. v. Barsotti, 40 Cal.App. 592, 181 P. 413; Flathead County State Bank v. Ingham, 51 Mont. 438, 153 P. 1005; Cadenasso v. Antonelle, 127 Cal. 382, 59 P. 765.)
Leo McCarty and A. H. Oversmith, for Respondents Shore and Blake.
Appellant sought by this action to obtain a judgment against the Shore Lumber Company as a partnership composed of Fred A. Shore, John Earlson and J. H. Ehrmanntraut, against the three persons named, individually, and against James W. Blake, assignee of the Shore Lumber Company, for goods sold to the company. The complaint as amended alleged that by reason of their written and spoken words and conduct, and representations made to appellant by them or with their consent, together with their having held themselves out as partners in the Shore Lumber Company, Shore, Earlson and Ehrmanntraut were estopped to deny a partnership composed of them, appellant having relied upon said holding out and upon the faith of the representations of the parties given credit to the Shore Lumber Company. Appellant was put upon its proof, and after it had introduced evidence in support of its case and rested, the court granted motions for nonsuit by respondents Earlson, Ehrmanntraut and Blake and entered judgment thereon.
The assignments of error upon appeal deal with the action of the trial court in sustaining objections to questions propounded to certain witnesses and in striking out the answer to a question; and complain of the granting of the motions for nonsuit, it being contended that the evidence was sufficient to show a partnership relation among the parties sought to be charged.
An examination of the record with regard to the contention that the court erred in sustaining respondents' objections to certain questions asked witnesses for appellant and in striking out the answer to a certain question discloses that in each instance the questions were objectionable as leading and calling for a conclusion of the witness based upon hearsay, or immaterial, and that the answer was not responsive to the question.
C. S., sec. 5828, taken from the Uniform Partnership Act, provides, among other things, that:
"When a person, by words spoken or written, or by conduct represents himself, or consents to another representing him to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or...
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