Howze v. Patterson , 53 Ala. 205 ( 1875 )

BRICKELL, C. J.

1. The case presents but a single material question, the decision of which, rests on undisputed facts, or those about which there is but little conflict in the testimony. The question is, whether there was a partnership between the appellants, and the Stollenwercks, when the contract on which suit is founded, was made; and the making of the contract was within the scope of the partnership. The definition of a partnership, adopted by this court, from approved elementary writers, is, “a voluntary contract, between two or more persons, for joining together their money, goods* labor, and skill, or either, or all of them, upon an agreement that the gain or loss shall be divided proportionally between them.” White v. Toles, 7 Ala. 569. A community of loss and profit, is the test of a partnership, even when the dispute is between the partners. Moore v. Smith, 19 Ala. 774 ; Emanuel v. Draughn, 14 Ala. 303. Applying this definition and test to the agreement, it is conceded, the parties made, and the relation of partners was created. The subsequent conduct of the partners — the joint sales of the merchandise purchased, and the division of the profits to the several partners, in the proportion of the funds they severally contributed, is conclusive that they so recognized and construed the agreement they had entered into, and on which they transacted business.

2. The business for which the partnership was formed, was the buying and selling of merchandise. It was a trading or commercial partnership. In such partnerships, one partner may borrow money, in the name,' and on the credit, of the firm, by note, bill or otherwise, and all will be liable. Am'n, Lead. Cases, 546. This would be true, even though the partner should misappropriate the money. In this case there is no room for doubt, that the money borrowed was properly appropriated for partnership purposes. Indeed, so far as a recovery appears to have been had, the money is incontrovertibly shown to have been used in purchasing salt, which formed part of the common stock, and the proceeds of the sales of which swelled the amount divided among the partners.

On the settlement of this partnership, a sum of money was left in the hands of the partner who had borrowed the money, to pay the debt to the appellee. On these indisputable facts, it is manifest the appellee was entitled to a recovery. We do not notice in detail the various exceptions reserved. If any of them are well taken, no injury has resulted to the appellants, and they would not furnish cause of reversal. The judgment must be affirmed.