Rector v. Robins

• Decision Date: 11 March 1905
• Citation: 86 S.W. 667
• Parties: RECTOR v. ROBINS.
• Court: Arkansas Supreme Court

86 S.W. 667

RECTOR v. ROBINS.

Supreme Court of Arkansas.

March 11, 1905.

Appeal from Circuit Court, Hempstead County; Joel D. Conway, Judge.

Action by J. N. Rector against W. H. Robins. From a judgment for defendant, plaintiff appeals. Reversed.

The following are the authorities cited by the appellant, and the instructions referred to in the opinion:

"(2) You are told that, although you may find from the evidence that the defendant, W. H. Robins, contemplated and agreed to enter into a contract with the firm of Purdom, Roberson & Co., by which the said Robins was to buy and locate timber and perform the services for said Purdom, Roberson & Co., and received as compensation therefor one-third of the net profits of the said firm's business, but contributed nothing towards the capital of said firm, you are told that that did not constitute him a member of said firm.

"(3) You are told that, although you may find from the evidence that the defendant, W. H. Robins, contemplated and agreed to enter into a contract with J. S. Purdom and W. A. Roberson, doing business as a firm of Purdom, Roberson & Co., by which he, said W. H. Robins, was to buy and locate timber and perform other services for said firm, and receive as compensation therefor one-third of the net proceeds of the said firm's business, but contributed nothing to the capital of the firm, still if you find that he afterwards severed all connection with the said firm prior to the execution of the note sued on, and was not a member of the firm of Purdom, Roberson & Co., when the note was executed, you will find for the defendant."

Amidown v. Osgood, 24 Vt. 278, 59 Am. Dec. 171; Moline Wagon Co. v. Rummell (C. C.) 12 Fed. 658; Meyer v. Krohn, 114 Ill. 574, 2 N. E. 495; Austin v. Holland, 69 N. Y. 571, 25 Am. Rep. 246; Regester v. Dodge (C. C.) 6 Fed. 6; Ketcham v. Clark, 6 Johns. 144, 5 Am. Dec. 197; Simonds v. Strong, 24 Vt. 642; Kennedy v. Bohannon, 11 B. Mon. (Ky.) 118; Johnson v. Totten, 3 Cal. 343, 58 Am. Dec. 412; Reilly v. Smith, 16 La. Ann. 31; Bolling v. State, 54 Ark. 588, 602, 16 S. W. 658; St. L., I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 156, 32 S. W. 500; St. L., I. M. & S. Ry. Co. v. Spearman, 64 Ark. 332, 337, 42 S. W. 406; St. L., I. M. & S. Ry. Co. v. Beecher, 65 Ark. 64, 68, 44 S. W. 715; Whitmore v. State (Ark.) 77 S. W. 598; Maddox v. Reynolds (Ark.) 81 S. W. 603; Kerr v. Topping, 109 Iowa, 150, 80 N. W. 321; Lemasters v. Sou. Pac. Co., 131 Cal. 105, 63 Pac. 128; Chicago, B. & Q. Ry. Co. v. Anderson, 38 Neb. 112, 56 N. W. 794; Edwards v. Ry. Co., 129 N. C. 78, 39 S. E. 730; Norfolk & W. Ry. Co. v. Mann, 99 Va. 180, 37 S. E. 849; Payne v. McCormick H. M. Co. (Okl.) 66 Pac. 287; Giffen v. Lewiston (Idaho) 55 Pac. 545, 548; Cleveland, C., C. & St. L. Ry. Co. v. Best, 169 Ill. 301, 48 N. E. 684; Georgia R. & B. Co. v. Hicks, 95 Ga. 301, 22 S. E. 613; Bleiler v. Moore, 94 Wis. 385, 69 N. W. 164; Wenning v. Teeple, 144 Ind. 189, 41 N. E. 600; Bluedorn v. Ry. Co., 108 Mo. 439, 18 S. W. 1103, 32 Am. St. Rep. 615; Catasauqua Mfg. Co. v. Hopkins, 141 Pa. 30, 21 Atl. 638; Konold v. Ry. Co., 21 Utah, 379, 60 Pac. 1021, 81 Am. St. Rep. 693.

This is an action on a promissory note. The complaint alleges that on April 9, 1900, Purdom, Roberson & Co. executed their promissory note to the Howard County Bank for $350, due 90 days after date, with interest at 10 per cent. per annum from maturity. That two payments had been made on said note as follows: Eighty-two dollars and sixty-five cents on June 9, 1900, and $7.60 on August 3, 1900, and that there had been no other payments. That the plaintiff signed said note as surety for the makers, and had been compelled by the payee to make good the amount thereof, after deducting the said payments. That plaintiff, J. N. Rector, executed said note as such surety at the request of said firm of Purdom, Roberson & Co., and that no part of the amount the plaintiff had to pay to protect the note had been paid by Purdom, Roberson & Co. or any other person. That at the time of the execution of said note the firm of Purdom, Roberson & Co. was composed of James Purdom, W. A. Roberson, and W. H. Robins. Prayer for judgment against the defendant, W. A. Robins, for the amount paid to protect said note by plaintiff. The defendant, Robins, filed his answer, denying any knowledge or information of the execution of the note or any payments thereon; alleged that he never executed a note of any kind to the plaintiff or to the Howard County Bank as mentioned in the complaint, and that he never authorized any one to execute such a note; that he was not, on the date the note was executed, a member of the firm of Purdom, Roberson & Co., and that he was not a member thereof before or since the date of said note, and that he was not indebted to the plaintiff in any sum whatever. There was a trial, and a verdict for the defendant. A motion for a new trial was filed by the plaintiff, and, upon due consideration by the court, was overruled, and the exceptions of the plaintiff properly noted of record. Whereupon the plaintiff prayed an appeal to this court, which was granted.

There was evidence tending to show that Robins was a partner of the firm at the time the note was executed. There was evidence tending to show that he had been a member of the firm, but had withdrawn. There was evidence tending to show that no notice of such withdrawal had been given to appellant, actually or otherwise. On the other hand, there was evidence tending to show that Robins was not a member of the firm at the time the note was executed, and had not been a member thereof; also evidence tending to prove that Robins had notified appellant before the note was executed that he was not a member of the firm of Purdom, Roberson & Co. W. C. Rodgers, for appellant. D. B. Sain, for appellee.

WOOD, J. (after statement of facts).

We could not disturb the verdict on the evidence, and the questions for decision are purely questions of law.

1. The first instruction given at the request of the appellee tells the jury that the burden was upon the plaintiff to establish by a preponderance of the evidence that the defendant, W. H. Robins, was a member of the firm of Purdom, Roberson & Co. at the time the note sued on was executed, and, unless such fact was established, the jury should find for the defendant. This was erroneous. The court had given at the request of the plaintiff the following: (8) "The jury are instructed to find for the plaintiff if they find from the evidence that W. H. Robins was a member of the firm of Purdom, Roberson & Co. at the time that firm commenced business, or afterwards before the indebtedness sued on was incurred, and the plaintiff extended the credit for the claim sued on in the faith of his belief that W. H. Robins was such a partner, then and in that event the said W. H. Robins would be liable for the amount of the note sued on and interest, unless he gave actual notice to the plaintiff, or gave notice generally by advertisement in some newspaper published in the locality or county, of the dissolution of the partnership before said indebtedness was incurred." It will be observed that the first instruction given at the request of the appellee and the eighth given at the request of appellant are in direct conflict. The first makes the liability of defendant depend solely upon the fact of his being a member of the partnership at the time the note sued on was executed; the eighth tells the jury that the defendant would be liable if he was a member of the firm when it commenced business, or before the indebtedness sued on accrued, if the credit was extended upon the faith of his being a member, and no notice, actual or constructive, had been given of the dissolution of the partnership. The latter instruction covers the testimony on both sides, and substantially states the law. Simonds v. Strong, 24 Vt. 642; Amidown v. Osgood, 24 Vt. 278, 59...