Phipps v. Little
| Decision Date | 29 January 1913 |
| Citation | 213 Mass. 414,100 N.E. 615 |
| Parties | PHIPPS v. LITTLE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan 29, 1913.
Phipps Durgin & Cook, of Boston, for plaintiff.
S. R. Wrightington, of Boston, for defendant Little.
If the relation between the defendants was that the defendant Eastman, who was defaulted at the trial, should receive a percentage of the profits as compensation for his services, then, as the judge told the jury, he was an employé of the defendant Little, and not a partner. The evidence, however, was plenary that under the name of Little & Eastman Company the defendants engaged in the manufacture of banjo clocks, and although Little furnished the capital the profits were to be divided between them in certain proportions. The jury, if convinced that this was the understanding and agreement, were warranted in finding a trading partnership. McMurtrie v. Guiler, 183 Mass. 451, 453, 67 N.E. 358; Estabrook v. Woods, 192 Mass. 499, 502, 78 N.E. 538. And Eastman as a member had implied authority to borrow money in the name of the firm, and to make and deliver the promissory notes in suit, if the proceeds were needed for partnership purposes. But he would have no right, as the jury were fully instructed, to borrow for his personal use on the firm's credit, and if the money was lent with knowledge of his purpose the plaintiff could not recover. Feigenspan v. McDonnell, 201 Mass. 341, 346, 87 N.E. 624.
Nor is the technical variance between the name of the firm and the signature on the notes of 'Little, Eastman Co.' material. The notes, eight in number, given on different dates, bore the same signature, in which name the testimony showed the firm's business had been carried on, and checks for merchandise sold were made payable. It is a question of identity, where a trade-name which differs from the actual name either of a person, firm or corporation, is used in business, and the jury from these transactions properly could find that the partnership was known commercially as well by one name as the other. Young v. Jewell, 201 Mass. 385, 386, 87 N.E. 604, and cases cited; William Gilligan Co. v. Casey, 205 Mass. 26, 31, 91 N.E. 124; R. L. c. 73, § 35; Tilford v. Ramsey, 37 Mo. 563, 567; Williamson v. Johnson, 1 B. & C. 146; Norton v. Seymour, 3 C. B. 729; Stephens v. Reynolds, 5 H. & N. 513, 517.
The evidence offered by the defendant of the contract made by him with one Menns, in which Menns was to receive a percentage of profits in addition to his weekly compensation, was rightly excluded. It had no tendency to disprove the contract of partnership between the parties. Kimball v. Longstreet, 174 Mass. 487, 55 N.E. 177.
The ruling excluding the further offer to show, that he directed Eastman, before the notes in question were negotiated, not to borrow more money of the plaintiff was right. If he wished to protect himself from liability in the future the defendant should have given notice to the plaintiff of his dissent, but having remained silent the plaintiff's title has not been impeached. Boardman v. Gore, 15 Mass. 331; Smith v. Collins, 115 Mass. 388; Stimson v. Whitney, 130 Mass. 591, 594, 595; Feigenspan v. McDonnell, 201 Mass. 341, 87 N.E. 624.
The defendant, however, had the benefit of instructions whether on all the evidence the authority of Eastman to borrow had been restricted, and whether the plaintiff knew or from the circumstances ought to have known of the restriction. But even if the jury accepted the defendant's theory, that as between themselves Eastman was merely an employé, there was evidence from which they could find, as the judge correctly said, that the...
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