Rotzien v. Merchants' Loan & Trust Co.
| Decision Date | 31 December 1918 |
| Docket Number | 4394. |
| Citation | 170 N.W. 128,41 S.D. 216 |
| Parties | ROTZIEN v. MERCHANTS' LOAN & TRUST CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; Levi McGee, Judge.
Action by Albert Rotzien against Merchants' Loan & Trust Company, a corporation. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed.
Schrader & Lewis, of Rapid City, for appellant.
Buell & Denu, of Rapid City, for respondent.
Plaintiff and one Fienup were the owners of a drove of some 72 head of horses in Pennington county. Appellant acquired his interest in the horses through a bill of sale from Fienup which conveyed to appellant an undivided one-half interest in said horses. The conveyance of this interest was by bill of sale. The property was incumbered by two chattel mortgages, one of which was given to secure an indebtedness of $1,100 and was filed so as to take effect prior to the bill of sale. It was treated as a first mortgage. The other mortgage purported to secure an indebtedness of $3,944.65, and was not filed until after the bill of sale took effect. This second mortgage was void on its face because it did not comply with certain provisions of the statute, and it was claimed by appellant that it was void for the further reason that the amount of indebtedness it purported to secure had, after its execution been materially increased without the knowledge or consent of the mortgagors. After both of these mortgages were in default, counsel for the owner of the mortgages procured from Fienup an instrument, designated a "trust conveyance," whereby Fienup purported to sell all of the said horses to respondent as trustee, with authority to such trustee to sell the horses at either public or private sale and to apply the proceeds therefrom to the payment of both of the said mortgages in the order of their priority. This instrument contains a recital to the effect that appellant and Fienup were copartners, but it is not signed by Fienup with any partnership name but only with his own individual name. This instrument was executed on the 15th day of May 1916. On the 22d day of September, 1916, the respondent acting for the owner of the $1,100 mortgage, after giving proper foreclosure notice, caused the foreclosure of said mortgage and caused the sale of a sufficient number of horses to satisfy said mortgage. Of this foreclosure appellant makes no complaint. Respondent, claiming to act under the authority of the said trust conveyance, then seized and caused the sale of the remainder of said drove of horses. Appellant was absent from the state at the time of the execution of the said trust conveyance and had no knowledge of the execution thereof until after said sale had been made. Upon learning what had transpired relative to such sale, he commenced this action, charging respondent with the conversion of the horses, and demanding judgment for the value of his interest therein. Verdict and judgment were for respondent, and plaintiff appeals.
As against appellant, respondent justified its seizure and sale of the horses on the sole ground that appellant and Fienup were partners, and that the trust conveyance executed by Fienup was binding upon appellant. Appellant denied that any copartnership ever existed between himself and Fienup, or that Fienup had any authority from him to dispose of or incumber appellant's interest in the horses; his contention being that he and Fienup were the owners, each of an undivided one-half interest in the horses, and that neither of them had any authority to act for the other. Upon this question the trial court charged the jury that, if appellant and the said Fienup were partners in the transaction involved, they should bring in a verdict for the defendant. The court further charged the jury that the burden of proving that the relation of partners did exist between Fienup and appellant devolved upon defendant, and that, unless they found that said partnership did exist, they should proceed to assess appellant's damages and return a verdict for him. Having returned a verdict for respondent, the jury must necessarily, under these instructions, have found that such partnership did exist. Appellant contends that there is no sufficient evidence to support such finding.
A copartnership is the relation that exists between two or more persons, who have combined their property, labor, and skill in an enterprise or business as principals for the purpose of joint profit. Spaulding v. Stubbings, 86 Wis. 255 56 N.W. 469, 39 Am. St. Rep. 888; 1 Bates, Partnership, § 1; 1 Lind. Partnership, p. 2. It is not necessary, in order to create a copartnership, that the parties have written articles of copartnership, nor, in all cases, that they even have an express agreement to that effect. But, as between themselves, there...
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