Rector v. Robins

• Decision Date: 11 March 1905
• Citation: 86 S.W. 667,74 Ark. 437
• Parties: RECTOR v. ROBINS
• Court: Arkansas Supreme Court

86 S.W. 667

74 Ark. 437

RECTOR v. ROBINS

Supreme Court of Arkansas

March 11, 1905

Appeal from Hempstead Circuit Court, JOEL D. CONWAY, Judge.

Action by J. N. Rector against W. H. Robins. Verdict and judgment were for defendant, and plaintiff appealed.

Reversed.

STATEMENT BY THE COURT.

This is an action on a promissory note. The complaint alleges that on April 9, 1900, Purdom, Roberson & Company 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: "$ 82.65 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 security at the request of said firm of Purdon, Roberson & Company, and that no part of the amount the plaintiff had to pay to protect the note had been paid by Purdom, Roberson & Company, or any other person. That at the time of the execution of said note the firm of Purdom, Roberson & Company was composed of James Purdom, W A. Roberson and W. H. Robins. Prayer for judgment against the defendant, W. H. 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 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 & Company 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, actual 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 & Company.

Judgment reversed.

W. C. Rogers, for appellant.

The verdict is contrary to the law and the evidence. 59 Ark. 105; 24 Ark. 251; 47 Ark. 497; 62 Ark. 510; 74 S.W. 293; 7 Ark. 542. A partnership, once proved to have existed, continues until notice of the change. 68 Miss. 196. The instructions Nos. 1 and 8 are in conflict (24 Vt. 278; 12 F. 658; 114 Ill. 574; 57 N.Y. 571; 6 Johns. 144; 3 Cal. 343; 16 La.Ann. 31), and are erroneous. 54 Ark. 588; 61 Ark. 141; 64 Ark. 332; 65 Ark. 68; 77 S.W. 598; 81 S.W. 598; 109 Ia. 150; 126 N.C. 78; 144 Pa.St. 30.

D. B. Sain, for appellee.

This court will not disturb a verdict where there is evidence to support it. 46 Ark. 142; 51 Ark. 476; 56 Ark. 314; 47 Ark. 196, 469; 49 Ark. 122; 70 Ark. 136, 512.

OPINION

WOOD, J., (after stating the 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 Purdon, Roberson & Company 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 & Company 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 the 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; Meyer v. Krohn, 114 Ill. 574, 2 N.E. 495; Moline Wagon Co. v. Rummell, 2 McCrary's Cir. Ct. Rpts 307, 12 F. 658; Kennedy v. Bohannon, 50 Ky. 118, 11 B. Mon. 118, and other authorities cited in appellant's brief.

But even if the eighth instruction was erroneous, it had been given, and the court should not have given one in direct conflict with it. Conflicting instructions furnish no correct guide to juries, and such instructions should never be given. Where the evidence is conflicting, they can have no other effect than to confuse and mislead the jury. Whitmore v. State, 72 Ark. 14, 77 S.W. 598; Maddox v. Reynolds, 72 Ark. 440, 81 S.W. 603; St. Louis, I. M. & S. Ry. Co. v. Spearman, 64 Ark. 332, 42 S.W. 406; St. Louis, I. M. & S. Ry. Co. v. Beecher, 65 Ark. 64, 44 S.W. 715; St. Louis, I. M. & S. Ry. Co. v. Aven, 61 Ark. 141, 32 S.W. 500; Bolling v. State, 54 Ark. 588, 16 S.W. 658.

The second and third instructions ^[*] given at the request of appellee were doubtless intended to tell the jury that if appellee was employed by the firm of Purdom, Roberson & Company to perform certain services, and was to receive as compensation for such services one-third of the net profits of the business, and if the jury should further find that Robins did not contribute anything toward the capital of the firm, then he would not be a member of the firm, but an employee merely. But the instructions were so drawn as to assume that one-third of the profits of the business were received by appellee as wages for his services, and also rather to assume that Robins did not contribute anything toward the capital of the firm. As framed, these instructions precluded the jury from considering the receipt of profits by appellee from the firm of Purdom, Roberson & Company in determining the question of whether or not appellee was a member of such firm. This was contrary to the rule announced by this court in Johnson v. Rothschilds, 63 Ark. 518, 41 S.W. 996; Culley v. Edwards, 44 Ark. 423. The sharing of profits is deemed one of the most cogent evidences of partnership. Pooley v. Driver, 5 Ch. Div. 458.

If it was the intention of the parties, Purdom, Roberson and Robins, to form a partnership for the manufacture and sale of lumber--the "mill business" as one witness called it--for the benefit of all, to which each contributed in property or services, or to which some contributed property...