Perry v. Banks

• Decision Date: 31 January 1854
• Docket Number: No. 90.,90.
• Parties: William Perry, plaintiff in error. vs. Butt & Banks, defendants in error.
• Court: Georgia Supreme Court

14 Ga. 699

William Perry, plaintiff in error. vs. Butt & Banks, defendants in error.

No. 90.

Supreme Court of the State of Georgia

JANUARY TERM, 1854.

Complaint, in Muscogee Superior Court. Tried before Judge Iverson, August Term, 1853.

Butt & Banks sued William Perry, on a promissory note, for $419. The defendant pleaded, as a set-off, an account for the board of Oliver P. Tillinghast, alleging that he was a partner of the firm of Butt & Banks. Much evidence was introduced upon the question of partnership, and some evidence to show that the firm had previously acquiesced in an agreement between Tillinghast and Perry, that such set-off should be allowed. In the course of the investigation, plaintiff's counsel asked a witness "if it was not customary for clerks to sell goods for cash and on a credit"? Defendant's counsel objected to the question, which being overrruled, he excepted.

The Court, among other things, charged the Jury that "the question of partnership did not affect the case, as the copartnership concern were not liable for the individual debt of one member". To which charge defendant excepted.

The Court charged, farther, that it was not important whether there was a partnership, unless there was proof that the concern had agreed to pay the debt of Tillinghast, or had, after being informed, or had knowledge of the fact, acquiesced in the arrangement made by him and Perry. To this charge defendant excepted.

Defendant's counsel requested the Court to charge—that if the Jury should believe, from the evidence, that Tillinghast was a member of the firm, that the plaintiffs could not recover. The Court declined so to charge, and defendant excepted.

Defendant's counsel, while plaintiff's counsel were making the concluding argument, moved for a non-suit, on the ground of the non-rejoinder of Tillinghast, as a partner. The Court refused the motion, and said in the hearing of the Jury, that said motion came too late—that if made at all. it should have been made before the case was submitted and argued to the Jury; but that as defendant's counsel insisted on his motion, and the existence of the partnership was left to the Court, he would decide that the evidence did not establish a partnership, and overruled the motion on that ground also. To all of which, defendant\'s counsel excepted.

Upon these several exceptions, error has been assigned.

Johnson & Patterson, for plaintiff in error.

Dougherty, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

Suit was brought in Muscogee county, by John H. Butt and Willis Banks, merchants and partners doing business under the firm name of Butt & Banks, against William Perry, on a note of hand for $419.12.

On the trial, the plaintiffs read the note and there closed their case. The defendant introduced, as a witness, Alfred White, who testified that he acted as clerk for the firm of Butt & Banks, during the time said firm did business; that Oliver P. Tillinghast was also in the store and sold goods for cash and on a credit, and also bartered off goods for other articles; that O. P. Tillinghast was the oldest, most experienced man about the store, and exercised the principal control in the management of the business of the concern; that he understood said Tillinghast to be a partner in the concern of Butt & Banks; that he was present when a conversation was carried on between John Banks, Jno. H. Butt, Oliver P. Tillinghast and Willis Banks; that John Banks said that the concern ought or could make money; that they could sell $30,000 worth of goods, and make 15 per cent, on the amount of sales, which would be $1500 apiece. He also testified that the terms of said partnership, as he understood, was, that John H. Butt and Willis Banks, each, were to put into the concern three thousand dollars, and Oliver P. Tillinghast was to render services and give his personal attention to the business, and the profits, after paying the debts and all expenses, and paying back to Butt and Banks the money put into the concern bythem, was to be equally divided between said Butt & Banks and Oliver P. Tillinghast.

On the cross-examination of White, he was asked by plaintiff's counsel, if it was not customary for clerks to sell goods for cash and on a credit? The defendant, by his attorney, objected to the question; but it was allowed to be propounded by the Court, and thereupon the defendant excepted.

We think the Judge was right in overruling the objection to the interrogatory put to Mr. White. The witness had previously proven that Mr. O. P. Tillinghast was in the store of Butt & Banks, and that he sold goods for cash and on credit; and this testimony was elicited by the defendant, to create the presumption that Tillinghast was a joint proprietor of the concern. Now, to rebut the inference of ownership, arising from this fact, the witness was asked, and we think very properly, to state whether clerks, as well as the principals in stores, were not in the habit of selling goods for cash and on credit? Surely this was legitimate.

The defendant next introduced, as a witness, Parris J. Tillinghast, who testified that he kept the books of the concern of Butt & Banks; that Oliver P. Tillinghast was also in the store, as a salesman; that he sold goods for cash and on a credit, and also bartered them for other articles; that O. P. Tillinghast had the chief management of the business of the concern; that he bought cotton and goods for the concern— made out bills and sent orders for goods to distant places— carried on also, the correspondence of said concern, in part; that he understood O. P. Tillinghast to be a member of said firm of Butt and Banks; that, in fact, he was a member of said firm. The terms of said partnership, as he understood, was, that John H. Butt and Willis Banks, each, were to put in said concern, the sum of $3,000, and O. P. Tillinerhast was to render services and give his personal attention to the business, and the profits, after payment of the expenses and debts, and refunding to Butt & Banks the capital advanced by them, was to be equally divided—one third to O. P. Tillinerhast, and the other two thirds to Willis Banks and John H. Butt.

The defendant then introduced O. P. Tillinghast, who testified that the firm of Butt & Banks was composed of Willis Banks, John H. Butt and himself; that said partnership was formed in the year 1849, and its terms were, that Willis Banks and John H. Butt, each, were to put into said concern the sum of three thousand dollars, and the witness was to render his services and give his personal attention to the business; and after paying all the expenses and debts, and also paying back to Butt and Banks, the money so put into the concern by them, the witness was bo have one third of the profits—nothing was said about losses. He further testified, that he had the principal control of the business of the concern; that he sold goods on a credit and for cash—bartered them for other articles— bought goods for the concern, from houses residing near— made out bills and ordered goods from houses at a distance— bought cotton for the concern, and carried on the correspondence, in part; that he was present when the defendant gave the note sued on; that it was given by the defendant for merchandize, bought of Butt & Banks; that the charge for the board of witness, pleaded as a set-off by the defendant, to plaintiff\'s action, was not included in the settlement, at the time when the note was given; that the account for board was correct, and unpaid; that defendant objected to giving his note, except for the balance due Butt & Banks, after deducting this account for the board of witness. Butt & Banks and John Banks being present, objected to allowing the account, on the ground that Butt & Banks were not liable to pay the individual debt of witness; that after some conversation between the parties, the defendant gave his note for the amount of Butt & Banks\' account. Defendant requested witness to give him his note for the board, with his father as security, which was not done. In a conversation between witness and defendant, upon the subject of boarding, which took place in 1849. defendant said that when merchants or their clerks boarded with him, it was his custom to trade it out, and that he did not expect cash, and that he, witness, assented to it. It was the understanding of witness that defendant\'s charges for his board, was to be allowed, as payment for any goods he might buy at Butt & Banks; that defendant had twice settled his account at Butt Banks, contracted prior to that for which said note was given; and in each settlement, defendant\'s charges for board of witness, prior to date of each settlement, was allowed; that witness made each settlement with defendant, and that said settlements were entered, on the books of the concern of Butt & Banks, and that either Butt or Banks might have seen said entries, upon an examination of said books, but did not know whether they actually knew of the settlements thus made.

Plaintiff then introduced Alexander H. Cooper, who testified that Oliver P. Tillinghast came to him as an attorney, to sue out a bail-writ against--, who was indebted to the firm of Butt & Banks. Witness inquired of Tillinghast in what capacity he would make the affidavit—as clerk, agent or how? Tillinghast replied as agent, and he did make the affidavit as agent, for Butt & Banks.

The testimony being closed, the Court, amongst other things, charged the Jury, "That the question of partnership did not affect the case, as the copartnership was not liable for the individual debt of one member; that it was not important whether there was a partnership, unless there was proof that the concern had agreed to pay the debt of Tillinghast, or had, after being informed or having knowledge of the fact, acquiesced in the agreement or arrangement made by him with the defendant, as to his private debt for board".

To which charge, as given,...