Salt Lake City Brewing Co. v. Hawke

• Decision Date: 13 December 1901
• Docket Number: 1330
• Parties: SALT LAKE CITY BREWING COMPANY, a Corporation, Appellant, v. WILLIAM HAWKE and WILLIAM ANDREWS, Co-Partners as HAWKE & ANDREWS, Respondents
• Court: Utah Supreme Court

66 P. 1058

24 Utah 199

SALT LAKE CITY BREWING COMPANY, a Corporation, Appellant, v. WILLIAM HAWKE and WILLIAM ANDREWS, Co-Partners as HAWKE & ANDREWS, Respondents

No. 1330

Supreme Court of Utah

December 13, 1901

Appeal from the Fifth District Court, Beaver County.--Hon. John E Booth, Judge.

Action to recover money loaned and for goods sold and delivered. From a judgment holding defendant Hawke alone liable for certain moneys advanced by plaintiff, the plaintiff appealed.

Reversed and remanded with directions.

Messrs Powers, Straup & Lippman, and William F. Knox, Esq., for appellant.

It is almost an elementary principle that, in case of commercial or trading partnerships, each partner has undoubted authority to pledge the partnership property, or borrow money for partnership purposes, or do any act incident or appropriate to the firm's business, according to the usage of such trade or business. Whoever associates with another for the purpose of carrying on business or trade, confers on him, as to third persons, who are not notified to the contrary, and who deal with him fairly and in good faith, authority to bind the partnership by contracts or engagements usually incident to the business in which the firm is engaged. Hoskinson v. Eliot, 62 Pa. St. 393; Dowling v. Exchange Bank, 145 U.S. 512; Randall v. Meridith, 76 Tex. 669; Holt v. Simmons, 16 Mo.App. 97; Wagner v. Simmons, 16 Ala. 143; Pahlman v. Taylor, 75 Ill. 629; Walsh v. Lennon, 98 Ill. 27; Sandheim v. Gilbert, 117 Ind. 71; Wiley v. Stewart, 122 Ill. 545; Wiley v. Thompson, 23 Ill.App. 199; Seekeel v. Fletcher, 53 Iowa 330; Smith v Collins, 115 Mass. 388; McDonald v. Clough, 14 P. 121; In re Ketchem, 1 F. 815; Dammon v. Beecher, 32 P. 573; Right Rem. and Prac. (Lawson), par. 643, p. 1210; Vol. 2, Rem. and Prac., pars. 645, 646, 647.

Elmer E. Corfman, Esq., for respondents.

It is the established practice of this court, that where the evidence is at all conflicting the court is not warranted in reversing the judgment of the lower court on the ground of "the unsufficiency of the evidence to support the judgment." Forman v. Bateman, 2 Utah 268; Slater v. Cragan, 7 Utah 412; Larsen v. Onesite, 21 Utah 38.

BARTCH J., delivered the opinion of the court. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

This action was brought to recover money loaned and for goods sold and delivered. It was alleged in the complaint, and admitted in the answer of the defendant Andrews, that the defendants were, at the time of the transaction out of which this controversy arose, co-partners doing business under the firm name of Hawke & Andrews. From the evidence it appears, in substance, that the defendants became partners on June 13, 1900, and conducted a saloon business at Frisco Utah; that Hawke, who had been in that business previously, was the managing partner, bought all the supplies, and generally conducted the affairs of the business; that pay day at the Horn silver mine occurred on the twentieth of each month; that on such pay days the saloons, same as other business establishments, would in the course of business, cash checks of employees of the mine; that in July, 1900, just previous to the pay day, Hawke applied by letter to the plaintiff for $ 1,000; and that by letter dated August 14, 1900, Hawke again applied for $ 500, and also in the same letter gave an order for goods. Referring to the request for money made in July, the witness Jacob Israel, agent of plaintiff, in the course of his testimony said: "I had $ 1,000 sent down by the brewing company to Frisco, and I received it and took it into the saloon of William Hawke and Andrews. When I got in there, I gave half of the money--that is all he wanted--to Hawke. While we were standing there, he says: This is Mr. Andrews. This is my partner.' William Hawke made this statement. He says he did not want his name in the name of the firm, because he did not want his name known in Salt Lake. That is the reason I am having the money in my own name.' He wanted the money to cash checks--checks from the miners from the Horn silver mine, I presume. This conversation took place in their place of business. . . The request came in the usual way, and I took the money down. I did not cash any checks myself. Mr. Hawke and Mr. Andrews handled the money. I did not see either of them cash the checks. When I delivered the money to Mr. Hawke, Andrews was standing there behind or in front of the bar, and he came in with Hawke to the counter right there. I gave Hawke $ 500, and Andrews was within two or three feet from him when I gave him the money, and he saw me give it to him. Hawke said, That will be enough for the time being to cash the checks,' and Andrews heard what he said. I reported the fact that Hawke had introduced Andrews to me as his partner to Mr. Moritz, the manager of the brewery." As to this same transaction the defendant testified: "I have heard the testimony of Mr. Israel in regard to $ 1,000 being sent there in July, but I do not remember that circumstance. I remember the Salt Lake Brewing Company's man having come there on that day. I saw that man come in, but I never saw the money. I do not know anything about those checks, whether they were paid off. I did not see them paid. I did not see them paying any checks that day. I saw Mr. Israel there in the house. I saw him in the house. I was behind the bar that day. I see that Israel had checks. I saw he has got checks, and he leave that evening. And he had checks when he leave that evening. And I saw William Hawke give him the checks." The letter of August 14, the one resulting in this suit, reads as follows: "Frisco, Utah, August 14, 1900. Salt Lake Brewing Company: Please send me on the eighteenth of month $ 500 by Pacific Express. Make $ 50 in silver. As there is no train on the twentieth, the money must leave night of eighteenth to reach here the night of the nineteenth, and I will forward checks to you on the twenty-first. Ship by express on the eighteenth two barrels of bottled beer. William Hawke." It is shown that neither of the defendants could write, and that the letter was signed by Hawke with his stamp; the letter having been written by William McHale, who, concerning the same, in part testified: "I wrote that letter for William Hawke to the Salt Lake Brewing Company on that date. Mr. Hawke called me from the street into his saloon, and asked me to write such a letter. Andrews was with him, I think. He asked me to write what I put in there, but at this time Andrews got up and went out." The $ 500 mentioned in the letter were sent by the plaintiff on the eighteenth of August, 1900, and were received by Hawke, who thereafter left the country. One check which Hawke cashed on the morning of the twentieth of August appears in full in the abstract. Respecting this, the witness Olsen, who had the check cashed, testified: "I got it cashed by Hawke. He said he had gotten some big money from Salt Lake. I am a merchant in Frisco. On pay day there are a good many checks in circulation, and then all the business men have to have money to cash checks to a certain extent in order to collect their bills. The merchants there have to have money to cash checks." The witness A. N. McLeod, concerning this last transaction, testified: "I remember the circumstance of William Hawke leaving Frisco last fall. At that time I had a conversation with the defendant here, William Andrews, in regard to this matter. He said the money came there, and it was used to cash checks, and he did not consider he was responsible for it, for William Hawke sent for it. I told him Hawke had skipped with this money, and he could not be found. Well,' he says, the money was used in the business to cash checks,' and he says, I don't consider I am responsible, because William Hawke sent for it.'" The witness Israel stated: "I remember the time that I went to Frisco, about the twenty-eighth of August last year. I saw McLeod there. I saw the defendant Andrews there, and had a talk with him. Andrews said that he was responsible for that $ 500. I would not like to state whether he said he had gotten it or not, as it has slipped my memory; but I rather think he said that he didn't." As to this transaction the defendant Andrews testified, among other things, as follows: "About the fifteenth day of August I had a talk with Hawke about getting money from the Salt Lake Brewery Company to cash checks. He say, I guess we have to have some money to pay day.' And I tell him that time we didn't want no money...