Pirie v. Gillitt

• Decision Date: 23 November 1891
• Citation: 50 N.W. 710,2 N.D. 255
• Court: North Dakota Supreme Court

50 N.W. 710

2 N.D. 255

JOHN. T. PIRIE, GEORGE SCOTT, ROBERT SCOTT, and ANDREW MCLEISH, Co-Partners under the firm name and style of CARSON, PIRIE, SCOTT & Co., Plaintiffs and Respondents, v. GEORGE GILLITT, WILLIAM GILLITT, and HARVEY GILLITT, Co-Partners doing business under the firm name and style of GILLITT BROS., Defendants; HARVEY GILLITT, Defendant and Appellant

Supreme Court of North Dakota

November 23, 1891

APPEAL from district court, Richland county; Hon. D. E. MORGAN Judge, presiding.

Action on account for goods sold. Verdict for plaintiffs by direction. Motion for new trial denied, and judgment entered on the verdict. From the judgment and order refusing a new trial defendant Harvey Gillitt appeals. Reversed.

Reversed.

W. E Purcell and L. B. Everdell, for appellant.

Ball & Smith, for respondents.

W. E Purcell and L. B. Everdell, for appellant:

The unauthorized statements of a person that a partnership exists between certain persons will not bind the person so charged. Lawson on Rights and Practice, § 642; 2 Greenleaf on Evidence, § 484; McPherson v. Rathbone, 7 Wend. 216; Whitney v. Ferris, 10 Johns. 66.

Ball & Smith, for respondents:

A partner, retiring from the firm, must give notice of his retirement or he will be liable to creditors of the continuing firm on purchases made by them after his retirement. 2 Bates on Partnership, § 606; Graves v. Merry, 6 Cow. 701; Williams v. Bowen, 15 Cal. 321; Bank v. Howard, 35 N.Y. 500; Amidon v. Osgood, 58 Am. Dec. 171.

BARTHOLOMEW, J. WALLIN, J., did not sit on the hearing; Judge TEMPLETON, of the first judicial district, sitting by request.

OPINION

BARTHOLOMEW, J.

There must be a new trial in this case. The action was on account for goods sold by the plaintiff firm to the firm of Gillitt Bros. Harvey Gillitt only made defense, and the sole issue was as to his membership in the firm of Gillitt Bros. The case was tried in February, 1891. The court, on motion directed a verdict for the plaintiff, and Harvey Gillitt appeals. The respondents began dealing with the firm of Gillitt Bros. in 1887. The goods for the value of which the action was brought were sold in August, 1888. To prove that Harvey Gillitt was or had been a member of the firm of Gillitt Bros., respondents introduced in evidence three certain exhibits. Two of these exhibits bear date May 18, 1888. The first purported to be a contract, by the terms of which George H. Gillitt and W. H. Gillitt purchased the interest of Harvey Gillitt in the mercantile business of the firm of Gillitt Bros., and stating the amount to be paid therefor, and the terms of payment, and from which it would appear that Harvey Gillitt had owned a half interest in the business. This contract is signed by the three parties. The second instrument is a bill of sale from Harvey Gillitt to George H. and W. H. Gillitt of such interest. The third instrument is a summary of the inventory taken in January, 1888, and would appear to be the basis upon which the other instruments were drawn. These exhibits were found in the court records of that county, having been introduced by Harvey Gillitt in the case of Harvey Gillitt against John Miller, tried some time previously. It seems that Miller, as sheriff, had levied upon certain property as the property of Gillitt Bros., and Harvey Gillett brought an action as mortgagee to recover the same, and these papers were introduced for the purpose of establishing the indebtedness secured by the mortgage. It may be readily conceded that, if the statements and recitals in those exhibits were uncontradicted and unexplained, the law would at once and conclusively say that, on and prior to May 18, 1888, Harvey Gillitt was a member of the firm of Gillett Bros. But respondents never extended any credit or took any action in any manner upon the strength of those exhibits. There is no element of estoppel in the case. In this case either party was at liberty to contradict any of the matter contained in those exhibits. In fact, the contrary is not for a moment claimed in this court, but it is claimed that there has been no substantial contradiction of those matters. This, we think, is a misapprehension of the evidence. The appellant went upon the stand and testified, in substance and in detail, that prior to 1885, and for about 15 years, he had been engaged in mercantile business at Hastings, Minn. That the business was conducted in the name of H. Gillitt, and no person but himself was interested in it. In 1885 he desired to go out of business, and to that end gave his sons, George H. and William H. Gillitt, one-half of the entire stock, with an agreement and understanding that they (the sons) were to take entire charge and control of the business and pay him for one half of the stock, the title to the one-half to remain in him until the goods were paid for. That the sons constituted the firm of Gillitt Bros., and after October 1, 1885, he (witness) had no interest in the business or in the profits or losses. That in August, 1886, the sons moved the entire business to Wahpeton, N. D. That soon after he desired the sons to make him evidences of indebtedness for what was coming to him, but that was never consummated until in May, 1888. That the exhibits signed by him were sent to him at Hastings, and he signed them in consummation of their former business transactions, and, as h...