Hotchkiss v. Devita ( 1925 )

The recovery had in this action is founded upon the finding of the trial court that the DeVita brothers and English were partners operating under the trade name of DeVita's Auto Exchange and that plaintiff dealt with the partnership. This conclusion is challenged by the appellants upon the grounds to be shortly stated as contained in their brief and presented upon argument. The exceptions to the action of the trial court as regards the correction of the finding are not meritorious. The finding was corrected as to two of the claims of the motion, and the result is incorporated in the above statement of facts. The other claimed corrections were in many cases statements of the facts as found by the court, in somewhat different language; many of them are requested findings in instances where the trial court has found facts derived from sharply contradictory evidence, and others sought to be sustained solely upon the testimony of the defendants as to points upon which the trial judge in his memorandum specifically states he did not believe the witnesses. The trial court committed no error in any respect as regards correction of the finding.

The claims of law urged by appellants upon the finding and pressed in argument are as follows: (1) "The finding of the court does not sustain the judgment rendered. The finding that Vita's Auto Exchange was a partnership was not an issue in the case." (2) "The court erred in finding a partnership between Joseph DeVita, James DeVita and Angelo English." As incidental and subsidiary to the claims just stated, it is also claimed (3): "The financial responsibility of the defendants is not an issue in the case and cannot be made the basis of a judgment." (4) "In this case the plaintiff is estopped from claiming that he bought the car on the responsibility of anyone but English." (5) The ruling of the court refusing to strike out the testimony as to the statements of English to the plaintiff and to Gillette, was erroneous.

The appellants' first point is concerned with the pleadings in the case, and they urge that the fact of the existence of a partnership cannot be found by the court, in that the defendants are not named in the writ as partners, nor is there an allegation in the complaint of the existence of a partnership between them. It is true that the three defendants are named in the writ only as individuals. The allegation in the amended complaint as to the interrelations of the defendants is that "the defendants, James Vita, Joseph Vita and Angelo English by Angelo English, their servant and agent, sold and delivered to the plaintiff one Dodge Touring Car," etc., as "the property of the defendants;" and further, that "the plaintiff paid to said Angelo English, as servant and agent of said defendants," the purchase price of the Dodge car, made up of cash and the Paige coupe.

"Partners, at common law, and generally today, in the absence of statutory authority changing the common law, cannot be sued in the firm name. . . . In some jurisdictions the common-law rule is changed by statutes which provide that partners, or a firm, may be sued by the partnership name, although it is still permissible to sue a firm in the individual names of its members." 20 R. C. L. p. 936, § 155; Markham v. Buckingham,21 Iowa 494, 89 Amer. Dec. 590. Our statute (General Statutes, § 5650) provides that suit may be brought against a partnership by the firm name without inserting in the process the names of the partners, but requires the insertion of the names of the partners after the return of the process to court. This provision clearly indicates the necessity, prior to the enactment of the statute, of stating the individual names in the writ, and certainly the right so to do at the time of issuance of process was not thereby taken away, nor the practice changed, but merely an additional right given a plaintiff to sue by using the partnership name only, provisionally, to be followed by an amendment fully setting forth the defendants' names. But defendants rely more particularly upon the claim that a partnership between the defendants is not expressly set up in the complaint. The allegation of the complaint quoted above, it is true, does not in terms speak of partners or a partnership, but it does allege the agency and service of English for himself and the other defendants; that is to say, the complaint, while omitting the word partners, does in fact set out the mutual agency of the persons involved, that is, the operative facts constituting a partnership. Our frequently quoted definition of a partnership, in Morgan v. Farrel,58 Conn. 413, 422, 20 A. 614, is that upon "the question of partnership it is sufficiently accurate to say that there is a partnership between two or more persons whenever such a relation exists between them that each is as to all the others, in respect to some business, both principal and agent. If such a relation exists they are partners; otherwise not. They are partners in that business in respect to which there is this relation; and as to any other business they are not partners. Partnership is but a name for this reciprocal relation."

In Coady v. Igo, 91 Conn. 54, 56, 98 A. 328, we say that while partners may, as between themselves, limit the scope of their mutual agency, still "it is true, . . . as in other relations of principal and agent, . . . the principal may be bound by the apparent, as well as by the actual, scope of the authority of a general agent."

The defendants in this case were all in court, they were apprised by the complaint that all were claimed to be liable upon the transaction relating to the sale of the car, they knew what the controversy was about, and were as well prepared to make any proper defense, as if it had been in terms alleged that they were partners. Such a view is taken by the almost unanimous consensus of authority, and it is generally held that in an action against persons composing a partnership it is not necessary to allege the fact of partnership in the complaint. The fact may still be proven at the trial despite the lack of such an allegation. Austin v.Beall, 167 Ala. 426, 52 So. 657, 22 Amer. Eng. Anno. Cases, 510. The very full note appended to the last citation fortifies this rule with comprehensive citation of cases. Conflicting cases are very few. The same rule is laid down in 20 R. C. L. p. 939, § 159. See also note to Spaulding Mfg. Co. v. Godbold, 29 L.R.A. (N.S.) 283 (92 Ark. 63, 121 S.W. 1063).

The second claim of defendants is that the court erred in finding the existence of a partnership between the defendants. As we have before seen (Morgan v.Farrel, supra), a partner is both principal and agent, principal as to himself and agent as to other partners. The question before us in the instant case is whether English acted solely on his own account or as an agent of the partnership. Such an agency, where the facts are conflicting, is one of fact, to be left to the jury, where the case is so tried, and determined by the court in cases tried without a jury, and the question of the correctness of the finding by the court is to be determined by asking whether the ultimate conclusion flows logically, reasonably and legally from the subordinate facts; if so, the determination of the question is conclusive.Torrey v. Holmes, 10 Conn. 499, 513; Irving v. Shethar, 71 Conn. 434, 42 A. 258; Indiana BicycleCo. v. Tuttle, 74 Conn. 489, 51 A. 538; Union TrustCo. v. McKeon, 76 Conn. 508, 514, 57 A. 109; Russo v. McAviney, 96 Conn. 21, 24, 112 A. 657; Dimon v.Romeo, 99 Conn. 197, 121 A. 352. When we consider the facts found, as detailed in the above statement, that in one instance English, during the negotiations with plaintiff, said he would have to call up his partner as to the deal and did call up, using the call of the Vita garage; that he told Gillette to call up the same telephone number with reference to the missing glass from the doors of the Dodge car; that the Vita dealers' marker, applied for and paid for by all three defendants, was used upon the Dodge car, and after the sale was transferred to the Paige car; that English, in beginning negotiations with the plaintiff, presented him with the business card of the Vita Auto Exchange, and had presented to him a similar card in a previous negotiation; that this card had been printed and issued by Joseph DeVita for use in the auto business; the attention given by English to the conference at Waterbury, as to return of the car to Lipsky; the taking part of the DeVita brothers in the conference with the plaintiff as to making good the loss to plaintiff, without disclaim of liability on their part, held at the place where the auto business was carried on; the execution of a conditional bill of sale given to Isabel C. Stewart by English on behalf of the auto company; — all of these, together with others appearing in the finding of the court and set forth in the above statement of facts, and the legitimate inferences to be drawn from all of the circumstances surrounding the transaction, justify the finding of a partnership by the trial court as a matter of fact logically, reasonably and legally derived, and in connection with the other facts found fully sustain the judgment of the court.

The third claim of the defendants, that the financial responsibility of the defendants, and particularly that of James DeVita, was not an issue in the case and is immaterial, is not meritorious. It is true that the issue is not raised in the pleadings, as is the case in scores of contested minor issues in any case, but it is relevant and material as bearing upon the credibility of the testimony of James DeVita, as showing bias and a motive to falsify.

The fourth claim of defendants, that plaintiff is estopped to claim that he bought the car from anyone but English and relied on his responsibility alone, in view of the facts found, carries its refutation upon its face. The situation presents no elements of an estoppel. It is simply a group of facts bearing upon the question of agency, and properly to be considered by the court in arriving at a decision.

The fifth claim, that the court erred in not striking out the statements made by English to the plaintiff and to Gillette, is without merit. It appears that the testimony came in originally without objection, and that much other testimony relative to the question of agency had afterward been received bearing upon this particular phase of the case, and the court considered that a prima facie case of agency tending to prove partnership had been made out. The evidence was also competent against English himself as proving his liability as a partner.

There is no error.

In this opinion the other judges concurred.