Roggenkamp v. Hargreaves

• Decision Date: 06 March 1894
• Docket Number: 4521
• Citation: 58 N.W. 162,39 Neb. 540
• Parties: WILLIAM ROGGENKAMP ET AL. v. ALFRED E. HARGREAVES ET AL
• Court: Nebraska Supreme Court

58 N.W. 162

39 Neb. 540

WILLIAM ROGGENKAMP ET AL. v. ALFRED E. HARGREAVES ET AL

No. 4521

Supreme Court of Nebraska

March 6, 1894

ERROR from the district court of Lancaster county.

Tried below before CHAPMAN, J.

AFFIRMED.

Abbott Selleck & Lane, for plaintiffs in error.

Cornish & Tibbets, contra.

OPINION

HARRISON, J.

January 12, 1888, the plaintiffs in the court below (defendants in error here) filed a petition in the district court of Lancaster county, in an action against William Roggenkamp and Charles Scott, partners, doing business as Scott & Roggenkamp, as defendants. The petition is short and we will give a copy of it:

"The above-named plaintiffs, a firm doing business at Lincoln Nebraska, complain of the above-named defendants, a firm doing business at Bennett, Nebraska, for that on the 10th day of August, 1886, plaintiffs sold and delivered to William Roggenkamp certain merchandise, consisting of smoked meats and hams, in the reasonable value of $ 33.40, which amount said Roggenkamp agreed to pay; that the same has not been paid, nor any part thereof; that there is now due from defendants to the plaintiffs thereon the sum of $ 33.40 and interest.

"Second--Plaintiffs further say that the said merchandise was purchased by the said Scott in the name of William Roggenkamp, and the same was shipped and delivered by plaintiffs to said Roggenkamp.

"Third--Plaintiffs further say that the said Scott, at the time of the said purchase, was in business in Bennett, Nebraska, as partner of the said Roggenkamp and that the said merchandise, as plaintiffs verily believe, was purchased for the use and benefit of said firm, and that said firm is liable for payment of the same.

"Plaintiffs pray judgment for the sum of $ 33.40 and interest, and costs of suit."

To this petition Scott did not answer. Roggenkamp, as answer for himself, filed a general denial. A trial was had to the court and a jury, and the jury rendered a verdict, which was as follows:

"HARGREAVES BROS., PLAINTIFFS, v. WILLIAM ROGGENKAMP.

"We the jury, duly impaneled and sworn in the above entitled cause, do find for the plaintiff and assess the amount of their recovery at the sum of thirty-three and 40/100 dollars principal, and seven 79/100 dollars interest."

A motion for a new trial was filed, argued, and overruled, and judgment rendered on the verdict against William Roggenkamp, and the case is brought here on error for our consideration.

The first assignment of error argued by plaintiff in error in his brief is that the verdict is not supported by sufficient evidence. We have read and considered the whole of the testimony carefully, and are satisfied that there was sufficient evidence to warrant the jury in believing that Roggenkamp furnished the capital and Scott contributed his services and they engaged in the business of running a butcher or meat shop, the profits of such business to be shared equally. This would constitute them partners within the rule or definition announced by this court in the case of Strader v. White, 2 Neb. 348, where it was said: "If a person contract with a partnership to contribute his services to the enterprise, for which he is to be compensated by a proportion of the profits, he becomes a member of the firm and liable for its debts, although he do not stipulate to bear any part of the losses." In the body of the opinion written by LAKE, J., we find the following statement: "It is argued, however, that there is no agreement on the part of the Whites to share in the losses which might occur, and therefore they cannot be held to be partners. This proposition is altogether untenable. In the first place they could receive no compensation for their skill and labor except out of the net profits. If these failed, they must necessarily share in the losses, at least to the extent of the value of the skill and labor contributed by them. It has been held that where one person advanced funds for carrying on a particular trade, and another furnished his personal services only in carrying on the trade, for which he was to receive a portion of the net profits, they were partners between themselves as well as to third persons." We are fully of the opinion that the evidence on the question of partnership was ample and strong enough to sustain the verdict and bring it within the rule of this court, so often expressed, that "when not clearly against the weight of the evidence, the verdict will not be disturbed." The same rule will apply to the contention made by plaintiff in error in regard to the facts that the claim in suit was for "smoked meats and hams." There was sufficient evidence to sustain the finding of the jury, that the smoked meats and hams were bought for sale in the business and with the knowledge of Roggenkamp, and the jury must necessarily have made such a finding as to this fact, as one of the component elements or facts of their whole verdict, as returned in the case.

The next assignment of error is that the court erred in giving to the jury instruction No. 4, which was as follows: "If you find from the evidence that the defendant Roggenkamp entered into an arrangement with Charles Scott, his co-defendant herein, whereby he became a partner of said Scott, in the business engaged in, and was to receive half the profits of said business, in pursuance of such agreement such arrangement would make said Roggenkamp a partner of said Scott in their business, and he would be liable...