Harrison v. Walker , 124 Ark. 555 ( 1916 )

Wood, J.,

(after stating the facts). (1) Appellants contend, first, that the credits endorsed on one of the notes showed that there had been paid the sum of $500, and that there was still due the sum of $300, and that the credits endorsed on the other note showed that the sum of $609 had been paid on it, .and the fact that neither of the notes had been marked paid showed that the notes had not been paid, or if any amount had been paid it was no greater sum than appellees were liable for.

But the testimony of the appellees was to the effect that they had.paid the notes in full. The receipt of November 23, 1915, although executed after the suit was brought, was introduced by the appellees without objection on .the part of appellants and it showed that appellee had paid the sum of $354, principal, and interest on one of the notes. The appellees had possession of the notes, which was of itself prima facie evidence^ that .same had been paid by them, and the fact that the endorsement of one of the credits was in the name of Walker, Watson and Hart and another in the name of J. W. Duncan does not tend to controvert the positive testimony on the part of the appellees that they paid the notes in full.

(2) The appellants contend that the transactions which gave rise to the execution of these notes, as evidenced by the notes and the contract for the purchase of .the horse; constituted the 'appellants iand the appellees partners. But this contention is not sound. The instrument which was signed by the appellants and the appellees, by which they .agreed to purchase the. horse and form a joint stock company, each agreeing to take a share of $200, to be .paid to the vendor of the horse, which represented their pro raía part of the purchase money, did not constitute appellants and appellees partners. This instrument .and the testimony showing the circumstances under which it was executed did not tend to prove a partnership between appellants and appellees. The most that this testimony tended to prove was an agreement between the parties for a joint purchase of the horse for which the notes were executed. A mere community of interest by joint ownership falls far short of being a partnership.

As was said in LaCotts v. Pike, 91 Ark. 28, “In order to constitute a partnership it is necessary that there shall be something more than the joint ownership of property. A mere community interest 'by ownership is not sufficient. This creates a tenancy in common but not a partnership. * * * Between the parties themselves it is essential that they shall share in the profits before it can be said that an agreement of partnership has been entered into and exists.” Citing authorities.

The testimony on the part of the appellees .shows an agreement for the joint purchase and ownership of a horse and the notes evidence a joint liability, but a partnership could not be presumed from this testimony, and the appellants have wholly failed to adduce any evidence that tended to prove the essentials of a partnership. See Roach v. Rector, 93 Ark. 526; Beebe v. Olentine, 97 Ark. 390, where the subject is discussed.

(3) There was no testimony to warrant a finding that the appellees had perpetrated any fraud upon the appellants in the execution of the notes. The fact that appellees, or some of them, stated to the appellants that they had sought the advice of counsel as to whether or not the parties who had signed the contract would be liable the same as if they had executed a note and that the attorney had advised them that they would be, would not be sufficient to justify the jury in finding that this constituted a fraud upon appellants, even if they were induced by such representations to sign the notes. There was nothing in the record to show that such representations were untrue, even if appellants relied upon them and had the right to rely upon them.

(4) The evidence was not sufficient to warrant the court in submitting to the jury the question as to whether. or not any fraud had been perpetrated upon the appellants, either in the signing of the contract toy which they agreed to contribute so much for the purchase of the horse, designated as shares, or in the execution of the notes in suit. Appellants could not toe heard to say, under their own evidence, that a fraud was perpetrated upon them, such as would avoid their contract, because of the fact that the agent of the vendor had presented to them a book representing that 'he was getting the names of those who were in favor of improving the stock of the community.

Appellants could read and write and the agent placed the book in their hands. There was nothing in the representations themselves that was fraudulent, and if appellants signed an instrument not knowing what it contained, the testimony shows that it was the result of their own carelessness.

(5) Even though the horse purchased may have failed to meet the requirements of the written guaranty, no advantage could be taken of this fact by the appellees or the appellants, for the guaranty expressly provided that, the seller “of said horse shall not be bound toy the conditions of this guaranty unless the purchaser submit them a monthly report in writing showing the condition of the horse, the number of mares served,” etc. The undisputed evidence shows that this was not done. Therefore, appellants cannot avail themselves of a breach of a warranty on the part of the vendor and-payee of the notes. as a defense to the present suit. Furthermore, the contract provides that the remedy for the purchasers of the horse in case he proved to be unsound and unsatisfactory was a return of the horse toy them on or before the first of April, 1915, and .that the seller should give them in exchange another horse of equal value. This remedy, under the contract, was exclusive. Crouch & Son v. Lake, 108 Ark. 322; Highsmith Bros. v. Hammonds, 99 Ark. 400; Walters v. Akers, 101 S. W. (Ky.) 1179.

As there was no defense to the notes, the_ appellants were jointly liable with the appellees, and as appellees had paid the notes appellants were liable to them for their pro rata share.

The judgment is therefore affirmed.