Snell v. Watts, 9724

• Decision Date: 19 March 1959
• Docket Number: No. 9724,9724
• Citation: 77 S.D. 534,95 N.W.2d 453
• Parties: Gertrude SNELL, Plaintiff and Appellant, v. Emerson WATTS and M. Peterson Watts, also known as Margaret Peterson Watts, doing business as Thermal Service & Construction Company, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 453

95 N.W.2d 453

77 S.D. 534

Gertrude SNELL, Plaintiff and Appellant, v. Emerson WATTS and M. Peterson Watts, also known as Margaret

Peterson Watts, doing business as Thermal Service

& Construction Company, Defendants and

Respondents.

No. 9724.

Supreme Court of South Dakota.

March 19, 1959.

Chas. E. Gorsuch, Mike Ronayne, Aberdeen, for plaintiff and appellant.

Elmer Thurow, Aberdeen, Lloyd Peterson, Watertown, for defendant and respondent M. Peterson Watts.

SMITH, Judge.

In this action Gertrude Snell, as plaintiff, seeks to recover damages from the defendants Emerson Watts and M. Peterson Watts, copartners, doing business as the Thermal Service & Construction Company, for breach of a contract whereby defendants agreed to remodel plaintiff's Onida, South Dakota, home. Defendant Emerson Watts was not served with process and did not appear in the action. The answer of M. Peterson Watts specifically denied the partnership and the use of the name Thermal Service & Construction Company and generally denied all of the allegations of the complaint. At the close of plaintiff's case in chief the trial court directed a verdict for defendant M. Peterson Watts. Plaintiff has appealed.

In the interest of clarity we develop the facts which the evidence received or offered tend to establish as it relates (a) to the parties, (b) to the transactions between plaintiff and Emerson Watts and (c) to the alleged partnership between Emerson Watts and M. Peterson Watts.

(a) The plaintiff, Gertrude Snell, lives at Onida, and the defendants, Emerson Watts and M. Peterson Watts, live at Aberdeen, in South Dakota. The defendants are husband and wife. Emerson Watts is also known as George Watts. We will refer to him as Watts and to her as Mrs. Watts. The Thermal Service & Construction Company will be designated as Thermal.

(b) On July 21, 1956, Watts called on plaintiff at Onida. As a result of his visit an oral agreement for the construction of a car port at plaintiff's home in Onida was reached. In partial payment for that improvement plaintiff delivered to Watts her check for $271.12 dated July 21, 1956, and payable to Thermal. On July 24, 1956, Watts returned to Onida and on that day he and plaintiff executed a memorandum of agreement providing Thermal would complete described improvements and repairs to her home for a consideration of $4,217.50. In the course of this transaction plaintiff delivered to Watts her check dated July 24, 1956, for $1,500 payable to Thermal as a down payment. Thereafter differences arose because the work was not undertaken as agreed. On September 14, 1956, plaintiff, Watts and their respective lawyers met and negotiated a formal agreement which named 'George Watts' as party of the first part and plaintiff as party of the second part. In this agreement the materials to be furnished and the improvements and repairs to be made were described more in detail. It recited, 'Whereas, the parties have entered into certain memoranda agreements and are desirous of defining more specifically the terms of the agreements * * *.' On September 24, 1956, by a check payable to George Watts an additional $1,500 payment was made under the terms of the contract. Thereafter the work was discontinued and never finished, and plaintiff paid others $1,992.84 to repair the damages done to her home by Watts.

(c) The letterhead of Thermal used in writing a letter to plaintiff bore its name, its address as No. 7 Ninth Ave. S. W., Aberdeen, South Dakota, the names of 'Emerson Watts, Gen. Mrg.' and 'M. Peterson Watts, Secty. & Treas.' and the statement 'Modernize. We can save you money on your home improvements.'

During the early days of July 1956 a salesman of the Rusco Window Company of Moorhead, Minnesota, called on Watts and Mrs. Watts at their Aberdeen home at No. 7 Ninth Ave. S. W., and proposed that Thermal become the company's local agent. During that conference the salesman pointed out that Watts' credit was not good and they would have to look to Mrs. Watts for the financial backing in the arrangement. Mrs. Watts then stated in Watts' presence that she 'would see that all accounts were taken care of and that everything would be handled properly and that it was a partnership' and thereupon, in her presence, Watts said, 'The wife and I are partners. She is taking care of the business angle of it and I am taking care of the sales angle of it.'

On July 2, 1956, Mrs. Watts opened an account in the Aberdeen National Bank in the name of Thermal. A signature card, containing a joint account agreement, was executed which included the following words 'Authorized signatures of Thermal Service & Const. Co.' and the signatures of Emerson A. Watts and Mrs. Emerson A. Watts.

Thereafter the above described checks of plaintiff payable to Thermal in the amounts of $271.12 and $1,500, and her check for $1,500 above described payable to George Watts were deposited in the account of Thermal in the Aberdeen National Bank.

On November 21, 1956, Thermal also opened an account in the Farmers & Merchants Bank at Aberdeen and authorized signatures. Appearing on the bank's signature card are Emerson A. Watts and Margaret E. Watts.

Mrs. Watts was at Onida with Watts and said to plaintiff 'We are sorry we are late in getting out, we had other jobs to look after and we came just as soon as we could.'

Plaintiff testified that Mrs. Watts paid two men who lived at Onida $44 each for work they did on her home in October.

In directing a verdict for the defendant, Mrs. Watts, the trial court expressed the view that plaintiff had failed to make out a prima facie case for two reasons, viz. (1) her...