Seabury & Johnson v. Bolles

• Decision Date: 20 November 1888
• Citation: 16 A. 54,51 N.J.L. 103
• Parties: SEABURY & JOHNSON v. BOLLES et al.
• Court: New Jersey Supreme Court

16 A. 54

51 N.J.L. 103

SEABURY & JOHNSON

v. BOLLES et al.

Supreme Court of New Jersey.

November 20, 1888.

Where a promissory note has been given for an account, it is admissible as evidence of the amount of indebtedness, without producing the books containing the account.

(Syllabus by the Court.)

Certiorari to Newark district court; HENRY, Judge.

The plaintiffs, a corporation of the state of New York, brought suit on a book account for chemical goods sold and delivered to Bolles Bros., a firm of druggists, which is claimed to be composed of the three defendants. It was tried before a jury, and the verdict and judgment thereon were for the plaintiffs $142.92 debt, and $10.65 costs. On appeal by David S. Crowell, one of the defendants, the judgment was affirmed in the court of common pleas.

Argued before SCUDDER and REED, JJ.

Joseph A. Beecher, for plaintiffs. Franklin M. Oles, for defendants.

SCUDDER, J., (after stating the facts as above.) The only question considered by the court of common pleas on the appeal, and it is the single point of real importance in the case presented in the return to this writ, is whether David S. Crowell was a member of the firm of Bolles Bros., and liable to the plaintiff for their claim. There was a motion to nonsuit and requests to charge, which cover this main matter in controversy, and a submission of the case to the jury resulting in a verdict against Crowell and the other two defendants. The duty of the court, in a plain case, is to instruct the jury or nonsuit the plaintiff. The case of Pleasants v. Pant, 22 Wall. 116, is apposite to this, and to the other points in the case, which were not passed upon in the court of common pleas. It is there said: "We hold the true principle to be that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury. If the court can see that, if a verdict for the plaintiff should be rendered, it ought to be set aside as being unwarranted by the testimony, such instruction should be given in advance of the verdict. Under our practice, a nonsuit, or such charge to the jury, would be proper; the plaintiff being allowed an exception on nonsuit in all cases where objection is made. But the question whether a partnership does or does not subsist between any particular persons is a mixed question of law and fact, and not a mere question of fact; and when the question is a matter of doubt, to be decided by inferences to be drawn from all the evidence offered, it is one of fact for the jury.

A brief consideration of the evidence will determine whether the judge was right in his refusal to nonsuit or charge, as requested, that there was no case for the jury made by the evidence. It is manifest that the defendant, David S. Crowell, who appealed, cannot be liable as a partner by holding himself out as such, under this evidence. That he might be held under proper facts is indisputable, and the reason for it is given. The doctrine that a person holding himself out as a partner, and thereby inducing others to act on the faith of his representation, is liable to them as if he were in fact a partner, is nothing more than an illustration of the general principle of estoppel by conduct. 1 Lindl. Partn. 40.

But this principle does not apply to one who is not a partner, and he will not be held liable as such on a contract made by the partnership with one who had no knowledge of the holding out. Thompson v. Bank, 111 U. S. 530, 4 Sup. Ct. Rep. 689; Waugh v. Carver, 2 H. Bl. 235, annotated in 1 Smith, Lead. Cas. 908; Dickinson v. Valpy, 10 Barn. & C. 140; Vice v. Anson, 7 Barn. & C. 409. The summary of the law on this point is that to create this liability two things must concur, viz.: First, the alleged act of holding out must have been known to the person seeking to avail himself of it. 1 Lindl. Partn. 43. The traveling salesman of the plaintiffs, who made the sales to Bolles Bros., in the city of Newark, conversed with Charles I. Bolles at the time and before he made these sales in suit, and testified that lie understood him, through the conversation with him, that it was he and his brother who owned the business. Neither the name of the firm, nor anything said to him, indicated that Crowell was a partner, or had any interest in the business. This is all the evidence on this point, and exonerates Crowell, who was not present, and took no part in the purchase. It appears that credit was not given in these sales to this appellant. But it is also claimed by the plaintiffs that there was a holding out to others, or, more properly, admissions and conduct in the presence of others, which show that the defendant Crowell was a partner. It is competent to show such admissions and conduct to charge one as a partner in fact. One witness, who was examined, testified thus: "I have heard Mr. Crowell say that he was interested in this business for quite a large amount, the full amount I cannot say, because I can't remember." "I have heard him make that remark a dozen or more times, I suppose." Also: "I have heard the remark that he was interested financially in the concern, had the good will of the business, in one sense, at heart, and all obligation would be paid, if we get sufficient means to do it." This, he says, was made in regard to purchases made of the business house which he represented. He further says: "I never heard that he was a partner there. I knew he was interested there." "I never remember his admitting that he was a partner." "Bolles Bros. was David Thompson. I was under the impression when I sold the goods that Mr. Crowell was interested." "Of my personal knowledge, I can say that Mr. Thompson did carry on the business under the name of Bolles Bros." He testifies to hearing Charles I. Bolles say to Crowell "that, the market being low in oils, it was a good time to buy them as they were using a great many of these...