Shapard v. Hynes

• Citation: 104 F. 449
• Decision Date: 17 October 1900
• Docket Number: 1,367.
• Parties: SHAPARD et al. v. HYNES et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

104 F. 449

SHAPARD et al. v. HYNES et al.

No. 1,367.

United States Court of Appeals, Eighth Circuit.

October 17, 1900

Samuel A. Wilkinson and Wallace Wilkinson, for plaintiffs in error.

Charles B. Stuart, Yancey Lewis, and J. H. Gordon, for defendants in error.

This is a suit for the wrongful seizure and conversion of certain chattels under a writ of attachment. William M. Hynes, his wife, Philomana Hynes and Clara Smith, as executrix of Samuel H. Smith, deceased, the defendants in error, were the plaintiffs in the lower court, while the plaintiffs in error S.

S Shapard, C. G. Moore, and F. W. Phelps (the latter being the officer by whom the attachment writ was levied), were the defendants. The writ of attachment under which the chattels were seized was issued at the instances of the Shapard Grocery Company, a firm said to have been composed at the time of S. S. Shapard and C. G. Moore, and it ran against J E. Cottraux, from whose possession the property in controversy was taken. The plaintiffs below claimed to be the absolute owners of the chattels, under a bill of said absolute on its face, that was executed at San Antonio, Tex., on January 4, 1894, by Philomana Cottraux and Joe Cottraux, her husband, who appear to have been, respectively, the mother and the father of J. E. Cottraux, who was in possession of the chattels at the time they were seized. J. E. Cottraux claimed to have the chattels in his possession at the time of the seizure as lessee of the plaintiffs. The property consisted of a marble soda fountain, marble-top tables, ice-cream freezers, show cases, and the general outfit of a confectionery establishment. It has been moved from Texas into the Indian Territory about 18 months before the seizure, and in the meantime had been in use by J. E. Cottraux, or by his father, Joe Cottraux, at South McAlester, in the Indian Territory, where the seizure took place. When the attachment writ was levied the property was loaded in a car for the purpose of transporting it to some point in Texas, and it was taken from the car, and a portion of it was subsequently sold. Shortly after the seizure, and prior to the sale, J. E. Cottraux served a written notice on S. S. Shapard, one of the attaching creditors, that the property belonged to the plaintiffs, and that they were entitled to its immediate possession. This notice, however, was disregarded, and a part of the property was sold to satisfy the claim of the attaching creditors. After the sale the attaching creditors offered to return to J. E. Cottraux, as agent of J. P. Cottraux (probably meaning his father, Joe Cottraux), such of the property as remained unsold. This officer was declined. The trial resulted in a verdict and judgment for the plaintiffs below in the sum of $520. This judgment was affirmed by the court of appeals in the Indian Territory, and the case has been brought hither for review.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

One of the issues that was raised on the trial below was whether the defendant C. G. Moore was a partner of S. S. Shapard at the time the latter directed the levy of the writ of attachment. The trial court disposed of this issue as a matter of law, instructing the jury, in substance, that Moore was a partner of Shapard at the date of the levy and sale, and that, being such, he was liable for the wrongful act of Shapard in directing the levy, if it was in fact wrongful, although he was not present, and neither directed the levy to be made, nor authorized the subsequent sale of the attached property. To this instruction an exception was taken, which presents one of the principal questions to be considered.

The testimony in the case concerning the existence of the alleged co-partnership was, in substance, as follows: Moore lived at Eufaula, in the Indian Territory, a considerable distance from South McAlester. About two years prior to January 1 1897, he formed a co-partnership with Shapard for the purpose of carrying on the grocery business at South McAlester. By the terms of the agreement, Shapard was to conduct the business in the name of the Shapard Grocery Company, and was to have full charge therof, but Moore was to furnish the capital. Moore's name was not used in the business, and, as he testified, he was not generally known as being a member of the firm. On January 1, 1897, Shapard bought Moore's interest in the business, agreeing to pay him therefor $1,800, at the rate of $125 per month. This agreement, it seems, was oral. Four monthly payments were made in pursuance of the agreement, but no notice of a dissolution of the firm was published, and it was understood between the partners that Shapard should run the business, as before, in the name of the Shapard Grocery Company. Moore has no knowledge of the levy of the writ of attachment on the property of the plaintiffs, which was made, as it seems, in the month of April, 1897, and neither derived a benefit from the levy, nor took part in any of the proceedings which culminated in a sale of the attached property. His first knowledge that an attachment writ had been issued and levied was acquired from Shapard after the present action was instituted, when he was advised by Shapard that the suit would not trouble him in any way. In June, 1897, Shapard sold a half interest in the business of the Shapard Grocery Company to one Ambrose, doing so with Moore's consent. Ambrose, it seems, paid $500 on account of his purchase, but failed to pay the residue of the purchase price. Later in the season, on or about September 1, 1897, Shapard having failed in business, and being unable to complete his monthly payments, Moore was compelled to take possession of the stock of goods then belonging to the Shapard Grocery Company, and he did so with Shapard's consent. At that time the grocery company was involved in debt, and Moore was compelled to pay, or at least did pay, $2,000 to satisfy claims against the grocery company. Notwithstanding the testimony aforesaid, which seems to have an obvious tendency to show that Moore was not a partner of Shapard at the time of the alleged wrongful seizure and sale of the property in controversy, and that he was in no sense responsible for the willful trespass of Shapard, the learned judge of the trial court seems to have entertained the view that Moore must be held responsible for the wrongful acts of Shapard, by the operation of the doctrine of estoppel. In the instructions given, the attention of the jury was directed to evidence which showed that the parties had once been partners; that some people knew that Moore was a member of the firm; that the firm was afterwards secretly dissolved, without letting the public know the fact; that the business was thereafter conducted in the old firm name; and in view of these facts the jury were told that Moore must be regarded as a partner of Shapard, and liable for all of his tortious acts in conducting the firm business. Obviously, therefore, the trial court held Moore responsible for the conduct of Shapard, by the operation of the principle of estoppel, without any reference to their actual relations inter sese. We are of opinion that this view was erroneous, because the object of the suit was not to charge Moore with a contractual liability to some one with whom the firm had formerly dealt, but to make him respond for a willful tort said to have been committed by Shapard. In such an action it was necessary for the plaintiffs to show that the relation of partners actually existed between them, and that the wrongful act was either done with the knowledge and approval of Moore, or that it was done for his benefit and in his behalf, and that he subsequently ratified it, or that it was plainly committed for the benefit of the firm, in the usual and ordinary prosecution of that part of the firm's business which Shapard was accustomed to transact. Add. Torts (6th Ed.) Sec. 82; Lindl. Partn. (2d Am. Ed.) p. 150; Jag. Torts, pp. 271-293; Webb, Pol. Torts, p. 114, and cases cited. In view of the nature of the action, the trial court erred in forcing Moore into the position of a partner, by erecting an estoppel, and then holding him accountable for the acts of Shapard, as if the relation of partners actually existed. The jury should have been left to determine from the evidence, under appropriate instructions, if Moore and Shapard were partners in fact; and they should also have been instructed as to the circumstances which would render the former responsible for the willful torts of the...