Webster v. Clark

• Decision Date: 11 December 1894
• Citation: 16 So. 601,34 Fla. 637
• Parties: WEBSTER v. CLARK et al.
• Court: Florida Supreme Court

16 So. 601

34 Fla. 637

WEBSTER v. CLARK et al.

Florida Supreme Court

December 11, 1894

Error to circuit court, Duval county; James M. Baker, Judge.

Action by John Clark, Son & Co. against Nathaniel Webster and E Rigney, late partners, doing business under the firm name of E. Rigney & Co. From a judgment for plaintiffs against defendants as late partners doing business under the firm name of E. Rigney & Co., defendant Webster brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. One who is not actually a partner, and who has no interest in the partnership, cannot, by reason of having held himself out to the world as a partner, be held liable as such on a contract made by the partnership with one who had no knowledge of the holding out.

2. When one does not allow the public or individual dealers to be deceived by the appearances of a partnership, the true test of whether a partnership does in fact exist between the parties is to be found in their intent as shown by the contract which they make, and names amount to nothing when the substance of the agreement shows them to be inapplicable.

3. Where parties enter into a trade arrangement upon such a basis as that they have a community of interest in the capital stock engaged in the business, and also a community of interest in the profits resulting therefrom, the uniform rule is that they will be held to be partners in such a venture.

4. Where the agreement under which a business arrangement is carried on, and which is claimed to be a partnership, is in writing, and free from ambiguity or doubt, its legal effect must be determined as a matter of law, and the intention of the parties gathered therefrom, but, if the terms employed leave the true meaning in doubt, the construction put upon the contract by the parties thereto may be looked to in determining its legal effect.

COUNSEL A. W. Cockrell & Son, for plaintiff in error.

John E Hartridge and W. B. Young, for defendants in error.

OPINION

MABRY J.

Defendants in error, as partners under the firm name of John Clark, Son & Co., sued plaintiff in error and E. Rigney, as late partners, doing business in the firm name of E. Rigney & Co. in an action of assumpsit for goods sold and delivered to the latter firm by the former. Webster interposed pleas that he was never indebted as alleged, and that he was not a partner of Rigney under the firm name and style of E. Rigney & Co. as set up in the declaration. Rigney did not defend. A trial before a referee resulted in a judgment in favor of plaintiffs below against defendants, Webster and Rigney, as late partners doing business under the firm name of E. Rigney & Co., for the amount of plaintiffs' demand, and Webster sued out a writ of error from the judgment. Rigney has refused to join in the writ of error, and the prosecution of the same here is on behalf of Webster alone.

Rigney bought the goods sued for, being such as are usually sold in a saloon business, and the only question involved is whether or not Webster can be held liable as a partner of the firm of E. Rigney & Co. Plaintiffs introduced in evidence the following instruments in writing, viz.: 'State of Florida, County of Duval. This indenture, made this fifteenth day of February, A. D. 1886, by and between Nathaniel Webster, of Gloucester, Mass., of the first part, and Edward Rigney, of Jacksonville, Fla., of the second part, witnessth: That the party of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained on the part and behalf of the party of the second part to be paid, kept, and performed, hath leased and demised, and by these presents doth lease and demise, unto the party of the second part, for the full period and term of fourteen months from the date of these presents, the billiard and bar room on Julia street, in the Everett Hotel, in the city of Jacksonville, Fla., with all the furniture contained therein, excepting the bar and bar fixtures and billiard tables and their equipments, which are to be paid for and owned equally by Nathaniel Webster and Edward Rigney. And the party of the second part shall pay unto the party of the first part the sum of two hundred and eight dollars and thirty-three cents per month in advance, and also such other sum of money as shall equal one-half of the net profits of the billiard and bar room hereinbefore mentioned. And it is also distinctly understood and agreed by both parties that the net profits may consist of cash and goods on hand after all necessary bills and expenses shall have been paid. Nathaniel Webster. [Seal.] Edward Rigney. [Seal.]

'Signed, sealed, and delivered in presence of: S. I. Bradley. P. F. Wethington.'

'Jacksonville, Fla., Feby 15th, 1886. It is understood that there shall be no net profits until Mr. E. Rigney receives as compensation for his services, and for the use of money advanced by him to pay for the bar and bar fixtures and billiard tables and billiard fixtures and to carry on the business, a sum equal to the amount of rent paid Mr. Nathaniel Webster. Nathaniel Webster. Edward Rigney.

'Witness: S. I. Bradley. P. F. Wethington.'

Witnesses were examined for plaintiffs and defendants, and among them Rigney testified as a witness for plaintiffs, and Webster testified in his own behalf. It appears from the record that all objections to the testimony were reserved for final discussion and disposition by the referee, but it is not shown that any objections were made to testimony either before or at the final hearing.

It appears from testimony before us that J. M. Lee operated the Everett Hotel in Jacksonville, as proprietor, during the season of 1885 and 1886, and for that time he let Webster have the wine and saloon privilege of the hotel for $1,000. On settlement between Lee and Webster this amount was reduced, in consequence of the late opening of the hote, to the sum of $333.33. Lee receipted E. Rigney & Co. for the reduced amount, and it is recited in the receipt that the understanding was that Rigney & Co. should pay $1,000 for the season of 1886 and 1887. In arranging for the wine and liquor privilege of the hotel, Lee negotiated with Webster personally, and, while he knew that Rigney was to have charge of the barroom in the hotel, he did not know what was the understanding or contractual relation between Webster and Rigney.

Rigney testified that he and Webster were equal partners in the saloon business in the Everett Hotel, and that the partnership was carried on under the written agreements above recited. He stated that the firm name of the partnership was not set out in the agreement because Webster did not want it known that he was a partner in the business, and that he (Rigney) did not disclose the fact unless it was necessary to do so. In making application for United States revenue license, which he did in the name of E. Rigney & Co., he was informed that the individual names of the partners would have to be set out in the sworn application; and in the presence of Webster the application was made before the revenue officer in the name of Edward Rigney and Nathaniel Webster, doing business in the firm name of E. Rigney & Co. The deputy revenue collector testified that he, by request, went to where Webster and Rigney were in the hotel, and informed them of the necessity of inserting the individual names of the partners in the application for license, and that Webster's name was inserted in his presence, and that he then stated that he was a partner in the business. Rigney also stated that for the season of 1886 and 1887 he paid Webster $500,--one-half of the hotel privilege,--and a check for this amount, payable to the order of Webster and indorsed by him, was introduced in evidence. J. H. Spillman, a traveling salesman at the time for a manufacturing establishment of billiard tables and saloon fixtures, testified for plaintiffs that he visited Jacksonville, and sold billiard tables to Nathaniel Webster for E. Rigney & Co., and that Webster stated to witness that he was a partner in the company of E. Rigney & Co. Also that Rigney informed witness that Webster was doing the buying for the firm. W. H. Hellen testified that he was bartender at the saloon in the Everett Hotel for 10 or 12 weeks, and during that time Nathaniel Webster was often in the bar, and told witness what to do. On one occasion Webster directed witness to open the bar earlier in the morning than he had been in the habit of doing, and would order drinks, and not pay for them, and they were not charged to him.

The goods sued for, it seems, were brought by Rigney in person, and the original entries were against him individually, but the journal account of plaintiffs was against E. Rigney & Co.

Webster denies that he was ever a partner of Rigney, and states that the only relation between them was that of landlord and tenant under the written agreements hereinbefore mentioned and which had not been changed during the continuance of the saloon business by Rigney in the Everett Hotel. He says that the writings were not intended to create a partnership, and that it was understood between the parties thereto at the time that no partnership should exist thereunder. The purpose of the writings, as testified to by Webster, was to definitely fix the relation of landlord and tenant, and that the rent was fixed at so much certain, and a further sum dependent upon the net profits of the business to conducted by Rigney. One witness testified that he frequently visited the bar with Webster, and that the latter, when ordering drinks, would pay for them as other customers, and that witness saw no difference in that respect between Webster and other customers. Rigney, in rebuttal, denied...