Waggoner v. First Nat. Bank of Creighton

• Decision Date: 05 December 1894
• Citation: 61 N.W. 112,43 Neb. 84
• Parties: WAGGONER ET AL. v. FIRST NAT. BANK OF CREIGHTON ET AL.
• Court: Nebraska Supreme Court

43 Neb. 84

61 N.W. 112

WAGGONER ET AL.

v.FIRST NAT. BANK OF CREIGHTON ET AL.

Supreme Court of Nebraska.

Dec. 5, 1894.

Syllabus by the Court.

1. Where there is no dispute as to the facts, or where all the facts are found or admitted, then the question of copartnership or no copartnership is a question of law for the court.

2. Where there is a dispute as to whether a copartnership exists, and a dispute as to the existence of facts which are necessary to constitute a copartnership, the question is for the jury under proper instructions.

3. Copartnership is a contract of two or more competent persons to place their money, effects, labor, skill, or some or all of them in lawful commerce or business, and to divide the profit or bear the loss in certain proportions. Following Kent's definition, 3 Comm. 34.

4. Sharing the losses of a venture is not essential to a copartnership. If there is a community of interest in the profits, as such, of the business, and not by way of compensation for services rendered or capital loaned towards the prosecution of the business, it is sufficient to constitute a partnership.

5. Sharing in the profits of an enterprise is prima facie evidence of a copartnership, but the presumption of partnership arising from a sharing in profits is not a conclusive one, and may be rebutted by the evidence.

6. Community of interest in profits, not by way of compensation for services rendered or capital loaned, but profits as such; a community of interest in the property the subject of the venture; and a community of power of management of such property,--are correct tests of copartnership.

7. The receipt by a party of a share of the profits of a venture merely as compensation for services, such party having no interest in the property made the subject of the venture, and no power in the management or control of such property, does not constitute such person a partner. Strader v. White, 2 Neb. 348 (third point in syllabus), overruled. Gibson v. Smith, 47 N. W. 1052, 31 Neb. 354, reaffirmed.

8. A loan or advance of money to be invested in some enterprise, the lender to have a share in the profits as a remuneration for such loan or advancement, he having no interest in the property made the subject-matter of the business, and no power of management or control of such property, does not constitute such lender a partner.

9. The execution and filing of a release of a chattel mortgage are not conclusive evidence of the payment of the debt secured by such mortgage in favor of the mortgagee of the property whose mortgage lien attached prior to the execution and filing of such release.

Error to district court, Knox county; Allen, Judge.

Replevin by Absolom Waggoner and another against the First National Bank of Creighton and another. There was a judgment for defendants, and plaintiffs bring error. Reversed.

Gregory, Day & Day. Greene & Baxter, and H. S. Draper, for plaintiffs in error.

Barnes & Tyler, O. W. Rice, and W. L. Henderson, for defendants in error.

RAGAN, C.

On the 7th day of May, 1891, a promissory note due in five months for $987.20 was given to the Boyer-Shelly Company. This note was signed, “James Carlin. S. F. Backus.” On the same day a chattel mortgage was given to the Boyer-Shelly Company to secure the payment of this note on the following property: “Sixty head of steers, two and three years old, and branded with slit in right ear. Said cattle were purchased in Union Stock Yards, South Omaha, Nebraska, and are to be shipped to Creighton, Nebraska, and taken to James Carlin's place, four and one-half miles north, put in pasture, and remain until ready for market. The above-described cattle are all the cattle of this brand on Mr. Carlin's place. That said stock, cattle, and chattels are now in perfect health, and in the undisputed possession of said party of the first part, on the premises of said party on section 33, township 30, range 5, in Knox county, Nebraska.” This mortgage began as follows: “Know all men by these presents that we, S. F. Backus and James Carlin (comprising the firm S. F. Backus & Company), of the county of Knox, and state of Nebraska,” etc. The mortgage was signed, “James Carlin. S. F. Backus,” and a true copy thereof was filed in the office of the county clerk of Knox county on the 9th day of May, 1891, at 9 o'clock a. m., and indexed: “Backus, S. F. & Co., mortgagor. Boyer-Shelly Co., mortgagee.” On the 18th day of May, 1891, a note for $375.50 was given to the said Boyer-Shelly Company, due October 7, 1891. This note was signed, “S. F. Backus & Co., by Jas. Carlin.” On said 18th day of May a chattel mortgage was given to the said Boyer-Shelly Company on the following described property, to wit: “Thirty-five steers, two years old, and branded with slit in right ear. Said cattle were purchased in Union Stock Yards, South Omaha, Nebraska, and are to be shipped to Creighton, Nebraska, and taken to James Carlin's place, four and one-half miles north, put in pasture, and remain until ready for market. The above-described cattle are all the cattle of this brand and age, except sixty head of cattle mentioned in mortgage dated May 7th, 1891, and located on James Carlin's place.” This mortgage began as follows: “Know all men by these presents that we, S. F. Backus and James Carlin (comprising the firm S. F. Backus & Company), in the county of Knox, state of Nebraska,” etc.; and the mortgage was signed, “S. F. Backus & Co., by Jas. Carlin,” and a copy thereof was filed in the office of the county clerk of Knox county on the 26th day of May, 1891, at 9 o'clock a. m., and appears to have been indexed: “Backus, F. S. & Co., mortgagor. Boyer-Shelly Company, mortgagee.” On the 2d of April, 1891, a note for $315, due five months after date, was given by James Carlin to the First National Bank of Creighton, Neb., and on the same day, for the purpose of securing the payment of said note, James Carlin gave a chattel mortgage to the said bank on the following described property, to wit: “Thirty-five head of two and three year old steers, marked with slit in the right ear, kept on my farm near Bazile Mills, Nebraska.” This mortgage, or a copy thereof, was filed in the office of the county clerk of said Knox county on the 6th of July, 1891, at 9 o'clock a. m. On the 24th of July, 1891, James Carlin gave another note, for $309, to said First National Bank, due 90 days after date, and on the same day executed another chattel mortgage, covering the identical property described in his first mortgage to said bank, and this mortgage, or a copy thereof, was filed in the office of the county clerk of Knox county on the 25th of July, 1891, at 9 o'clock a. m. On the 8th day of October, 1891, James Carlin gave two notes to the State Bank of Creighton, Neb., one for $700 and one for $600, each due 90 days after date, and to secure the payment of the same, on said 8th of October he executed to the State Bank of Creighton a chattel mortgage on the following described property, to wit: “Sixty-four two and three year old steers, all marked with a slit in right ear, and are to be fed at Bazile Mills, Nebraska.” This mortgage, or a copy thereof, was filed in the office of the county clerk of Knox county on the 13th of October, 1891, at 9 o'clock a. m.

It appears that about November 1, 1891, Waggoner & Birney, the plaintiffs in error, at the request of James Carlin, paid to the Boyer-Shelly Company the full amount of the principal and interest due them on the notes and chattel mortgages held by them, and which had been given them on the 7th and 18th days of May, as already stated; and the Boyer-Shelly Company indorsed and delivered said notes and chattel mortgages securing the same to Waggoner & Birney, and at the same time executed and delivered to Waggoner & Birney releases of said chattel mortgages. The object of this transaction was that Carlin desired Waggoner & Birney to lend him some $300, and take a mortgage on all these cattle to secure the amount due the Boyer-Shelly Company and the amount Waggoner & Birney were to advance him. For this purpose Waggoner & Birney appear to have taken the note of Carlin for the amount of the Boyer-Shelly Company's notes and interest and the amount which Waggoner & Birney were to lend or advance Carlin, and at the same time took a chattel mortgage on the 94 head of cattle described in the Boyer-Shelly Company's mortgages to secure its payment. About the time Waggoner & Birney had this transaction with Carlin, they ascertained that the mortgages made to the Boyer-Shelly Company purported to be executed in the name of S. F. Backus & Co., and thereupon Waggoner & Birney deposited with their bankers at South Omaha the notes and mortgages they had purchased of the Boyer-Shelly Company, the releases of the same, and the new mortgages executed to them by Carlin, and instructed their bankers to send the new mortgage made by Carlin to Knox county for record. The bank, however, by mistake, and contrary to the orders of Waggoner & Birney, appears to have sent to the county clerk of Knox county the releases of the Boyer-Shelly Company mortgages, and these releases appear to have been entered of record by the county clerk of Knox county.

The evidence also tends to show that about May 1, 1891, S. F. Backus and James Carlin both resided in South Omaha. About this time Carlin became the owner of a piece of land near Bazile Mills, in Knox county. That an agreement was entered into about this time between Carlin and Backus that the latter should have the option of becoming a half owner in the land, but this part of the agreement between them was never consummated. By virtue of the agreement between the parties, however, Backus advanced $300 towards paying for the 60 head of cattle which were purchased of the Boyer-Shelly Company on the 7th of May, and he and Carlin executed the note and mortgage of that date to the Boyer-Shelly Company for the remainder of the...