Roggenkamp v. Hargreaves

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

39 Neb. 540

58 N.W. 162

ROGGENKAMP

v.HARGREAVES ET AL.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

1. The evidence in the case examined, and held sufficient to sustain the verdict.

2. Objection to an instruction given by the court on its own motion considered, and held, when taken in connection with an instruction given at request of defendant, to so present the issues in the case that, although such instruction may have been defective and indefinite, its giving was not prejudicial to the rights of the defendant.

3. Objections to the verdict of the jury in this case considered, and held, that the verdict was not so deficient or erroneous, in either form or substance, as to call for a reversal of the case, and that it was proper and correct for the jury in the case,--it being one against the individual members of a partnership on account for articles of merchandise furnished to the firm,--to return a verdict against one defendant, or member of the firm, alone, and that the court did not err in rendering judgment on such verdict.

4. Objection to the form and terms of a verdict should be made in the court below, at the time of rendition, in order to be available on error to this court.

5. In an action against the individual members of a partnership, on an account for merchandise purporting to have been furnished to the firm, if the testimony shows that the articles were furnished to one of the persons composing such firm, and that the debt sued for was the individual debt of such member or person, a verdict may be returned against such member, and judgment rendered thereon against him alone.

Error to district court, Lancaster county; Chapman, Judge.

Action by Alfred E. Hargreaves and others against William Roggenkamp and another. There was judgment for plaintiffs, and defendant Roggenkamp brings error. Affirmed.Abbott, Selleck & Lane, for plaintiff in error.

A. J. Cornish and Cornish & Tibbets, for defendants in error.

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, Neb., for that on the 10th day of August, 1886, plaintiffs sold and delivered to Wm. Roggenkamp certain merchandise, consisting of smoked meats and hams, in the reasonable value of $33.40, which amount said Roggenkamp agreed to pay. 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 Wm. Roggenkamp. 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 for 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., Plaintiff, 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 & 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 is 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...