Smith v. Vanderburg

• Decision Date: 30 September 1867
• Citation: 1867 WL 5324,46 Ill. 34
• Parties: BENJAMIN F. SMITH, IMPL'D ETC., et al.v.A. C. VANDERBURG.
• Court: Illinois Supreme Court

46 Ill. 34

1867 WL 5324 (Ill.)

BENJAMIN F. SMITH, IMPL'D ETC., et al.

v.A. C. VANDERBURG.

Supreme Court of Illinois.

September Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Messrs. FULLER & SHEPARD, for the appellants.

Mr. J. S. WOLFE and Messrs. HERVEY, ANTHONY & GALT, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit brought in the Recorder's court of the city of Chicago, by Abram C. Vanderburg against Benjamin F. Smith and others, partners under the firm name of “Morrell Electro Magnetic Fluid Company.” Benjamin F. Smith was alone served with process.

The declaration counted upon a promissory note, alleged to have been executed by Benjamin F. Smith and the others named, “partners, etc.,” under the firm name as above stated. The note bore date April 19, 1866, and was signed “Morrell Electro Magnetic Fluid Company, John E. Cone, Superintendent,” and was payable sixty days after date, with use.

The common money counts were added, and counts for goods, wares and merchandise sold and delivered, and for the labor, care and diligence of the plaintiff, bestowed in and about the business of the defendants at their request.

Smith pleaded, verifying his plea by affidavit, that he was not, at the date of the note, a partner of Morrell, Farrar, Linscott, Lake and Cone, and was not jointly liable with them as partners in the supposed promises and undertakings. He also pleaded the general issue, and on a change of venue to the Circuit Court, the cause was tried on these issues by the court, without a jury, and a verdict for the plaintiff. A motion for a new trial having been overruled, judgment was entered on the verdict, to reverse which the defendant Smith appeals to this court.

It appears by the record, that the judgment was entered, originally, against all the defendants, but at a subsequent day of the same term, on motion of the plaintiff, the record of the entry of the judgment was so amended as to make it a judgment against Smith alone, impleaded with the others named.

Exception was taken to this by the defendant Smith, but we can perceive no error in the action of the court thus had at the term at which the proceedings occurred. During the term, the record of every cause is in the breast of the court, and such amendments can be made by the court on its own motion, after inspection thereof, as justice and the right of the case may seem to require. This is a familiar principle.

The principal question raised upon the record is, was there a partnership between the parties alleged to be such, at the time the note was executed?

The evidence to establish the fact of partnership, consists chiefly in the following instrument introduced on the trial: “This agreement made this fifteenth day of February, 1866, by and between J. A. Morrell and W. W. Lake, of the city of Chicago, of first part, and J. E. Cone, A. N. Linscott, B. F. Smith and H. W. Farrar, of second part, witnesseth, that in consideration that said Linscott, Smith and Farrar shall furnish the sum of fifteen thousand dollars as capital for the business of manufacturing and sale of ‘Morrell's Electro Magnetic Fluid,’ to the satisfaction of said Cone, who shall have the sole and exclusive charge and management of said business, and an annual salary of three thousand dollars, to be charged to expense account of said business, together with twenty-five per centum of net profits arising from same, and the further consideration that the said party shall pay or cause to be paid to the party of the first part, thirty-seven and one-half per cent. of the proceeds of said business after all expenses and charges are paid. Said party of first part hereby grant and convey unto J. E. Cone, the sole and exclusive right to make and sell the said fluid, during the continuance of this agreement. And said party of first part covenant and agree with party of second part to neither make nor sell said article, nor in any manner interfere with the making or selling the same, nor with the management of said business; they further covenant and agree, jointly and individually, that if called upon by said Cone for that purpose, to compound the said fluid at such reasonable salary as may be agreed upon, or in default thereof, the said Cone may compound the same or procure the same to be compounded, after the sealed formula placed in his hands, which we further covenant and agree is the genuine recipe or formula for the compounding the concentrated fluid which is put up for sale, one equivalent in bulk to nineteen equivalents of pure water; party of first part, in consideration, as aforesaid, grant and convey unto said Cone all stock and fixtures on hand pertaining to said business.

Said party of second part, hereby covenant and agree with party of first part that Col. J. E. Cone shall have the superintendence of said business, that they will pay party of first part said thirty-seven and one-half per cent. of profits, after expenses are all paid, which expenses shall include twenty per cent. per annum on the amount of cash capital actually paid in and used in said business. And party of second part further covenant that said capital shall not be lessened except upon consent of said Superintendent, and in case the whole of said capital is at any time withdrawn, the proportion of interest of said party of first part shall be in accordance with a contract heretofore made by and between the party of first part and said J. E. Cone.

It is mutually agreed that no distribution of profits shall be called for before the last day of each year during the continuance of this agreement, but that profits may be used in extending the business until the net profits shall amount to one thousand dollars per month over and above current expenses.”

Does this writing make all the subscribers to it, Morrell and Lake, Farrar, Linscott, Smith and Cone, partners? It is difficult to perceive any stipulation in it, which makes Lake and Morrell partners with the others named, or with the appellant. We should infer from the phraseology used, that Lake and Morrell were proprietors of some invention for the manufacture of magnetic electric fluid, and in order to raise funds to make the invention productive, they were under the necessity of calling to their assistance other parties, and accordingly conveyed to Cone the right to make and vend it, and all the stock and fixtures they had on hand appertaining to the business, they, as compensation, to receive...