Wyatt v. Brown

• Citation: 281 S.W.2d 64,39 Tenn.App. 28
• Parties: Fred WYATT, etc. v. John M. BROWN et al.
• Decision Date: 07 January 1955
• Court: Tennessee Court of Appeals

Page 64

281 S.W.2d 64

39 Tenn.App. 28

Fred WYATT, etc. v. John M. BROWN et al.

Court of Appeals of Tennessee, Eastern Section.

Jan. 7, 1955 Certiorari Denied by Supreme Court June 10, 1955.

Frank W. Wilson, Oak Ridge, for plaintiff in error.

Richard Stair, Oak Ridge, Thomas H. Goodman, Knoxville, for defendants in error.

HOWARD, Judge.

This suit originated in the Trial Justice Court of Anderson County, Tennessee, by a civil warrant filed originally by C. U. O'Neal, but later amended to include Fred Wyatt, against John F. Brown and Lloyd Dearing, allegedly doing business as a partnership. The warrant charges that defendants were paid the sum of $1,000 upon their contract to dig a well which they would guarantee to provide water fit for human consumption, and that defendants had breached their contract in failing to provide usable water and had refused to refund plaintiff's money. The Trial Justice Court found for the plaintiff against each of the defendants in the sum of $1,000.

Both defendants perfected appeals to the Circuit Court of Anderson County where each filed written pleas in abatement denying the existence of a partnership, and, without waiving their plea in abatement, also filed oral pleas of the general issue. The cause was heard without a jury, and resulted in a judgment in the sum of $1,000 for the plaintiff against Lloyd Dearing, the suit against Brown being dismissed.

The plaintiff has perfected an appeal to this Court from the judgment dismissing the suit against Brown, and errors have been assigned directed at the findings and conclusions of the Circuit Judge, the chief complaints being, (1) that the Court erred in holding that Brown and Dearing were not partners, (2) that the Court erred in excluding the testimony of witnesses as to certain admissions made to them by Dearing that he and Brown were partners, and (3) that the Court erred in holding that Brown was not bound by any contract made between plaintiff and Dearing with respect to guaranteeing the quality of water to be obtained from the well.

The Circuit Judge found that no partnership existed between Brown and Dearing, and unless the evidence preponderates against this finding, the judgment must be affirmed. Code Section 10622.

The record discloses the following undisputed facts: That Brown and Dearing shared equally in the profits of Dearing's well digging operations, and they would have shared equally in any losses sustained; that Brown kept a check on Dearing and the jobs he was doing, and they together supplied pipe for casing the well; that Brown, after the controversy herein arose, conferred with O'Neal and stated that he didn't know if there was anything that could be done about the well, that it looked 'like the only thing would be to drill again,' and that Brown offered to pull the pump from the well and chlorinate it; that Brown was not only frequently at the site of the operation making suggestions, but that it was necessary for him to approve the allowance of a cash discount to O'Neal, and that when difficulties arose from time to time they were cleared by Dearing with him; that on the previous trial of the case, before the Justice of the Peace, Brown did not deny that there was a partnership between him and Dearing. No where in the testimony of Brown or any other witness was there any indication that Brown's share of the profits was in payment of any debt, interest or rent, or that Dearing's share of the profits was in lieu of wages.

The early English decisions appear to have treated the sharing of profits as conclusive evidence of a partnership; 40 Am.Jur., Sec. 33, p. 147; Polk v. Buchanan, 37 Tenn. 721. Over a period of years exceptions have been engrafted on this rule, the present law being Code Section 7846(4), enacted in this State in 1917, and reading as follows:

'The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment (a) as a debt by installments or otherwise; (b) as wages of an employee or rent to a landlord; (c) as an annuity to a widow or representative of a deceased partner; (d) as interest on a loan, though the amount of payment vary with the profits of the business, or (e) as the consideration for the sale of the good will of a business of other property by installments or otherwise.'

Dearing testified, on cross examination, that he considered himself and Brown as being partners. There was no objection to this evidence, and it was properly admitted. This testimony did not fall in the class of a declaration out of court by Dearing, testified to by other witnesses, but was direct testimony in court, subject to cross examination, and did not, therefore, fall under the shadow of the hear-say rule.

Defendant in his brief refers to the cases of Vanzant v. Kay, 21 Tenn. 106, and Yancey v. Marriott, Frisby & Co., 33 Tenn. 28, 29, which held that a co-partner is not a competent witness to prove the existence of a partnership. These cases were decided in 1840 and 1853, and apparently are only restatements of the old common law rule that an interested witness is not a competent witness; 58 Am.Jur., Sec. 159, p. 114. However, this ancient rule was abolished by statute in England in 1851, and in most of the States, Tennessee following suit in 1867. Code Sec. 9777; 58 Am.Jur., Sec. 172, p. 121. It is, therefore, clear that under the present existing law a partner is a competent witness to give direct testimony in court, subject to cross-examination, as to the existence or non-existence of a...