Getchell v. Foster , 106 Mass. 42 ( 1870 )

Ames, J.

The agreement to enter upon “ an operation embracing the purchasing and selling of shingles and clapboards ” was sufficient to render all the parties to it copartners in relation to third persons, according to all the tests recognized by the authorities. It refers to a joint undertaking; it assigns to the parties interested their several shares in the management of the 'easiness; and it provides for an equal participation in all profits and losses. The fact that the purchases were to be made by one of their number, and that he was to give his time to that part of the business without furnishing any part of the capital, would not affect the que?lion of the joint liability of all the associates on account of the purchases so to be made. As they do not appear to have expressly agreed upon any partnership style or firm name, but intended that Brown should make their purchases, the business of purchasing conducted by him, on the joint account and within the authority confided to him, would be binding on all, even if his agency had not been disclosed to the seller. The facts, however, find that Brown’s relation to the matter was fully disclosed before the sale was made, and that the plaintiff understood that the purchase was on the joint account of the defendants and their associates. Baring v. Crafts, 9 Met. 380. Pratt v. Langdon, 12 Allen, 544. Brigham v. Clark, 100 Mass. 430. Odiorne v. Maxcy, 15 Mass. 39. The testimony of Brown and also of the plaintiff upon this subject does not appear to us to be objectionable as varying a written contract. Its effect was rather to show that the associates used his name in their purchases as one by which all were included and bound, as their firm name for that part of their business, and recognized him as their agent for that purpose.

We think, however, that upon the facts stated the jury should have been instructed that the defendants were entitled to a deduction of the draft of $550 from the plaintiff’s claim. It appears that he drew an order upon Brown before he was entitled to do so according to the contract, but with the expectation that, if Brown accepted it, it would be taken into account and allowed for on settlement. It appears also that Brown gave the draft of $550, intending it as a part payment for the merchandise sold by the plaintiff, and that it was such a draft as the plaintiff had by the terms of his contract agreed to receive in payment. The fact that it was delivered to the plaintiff, or applied to his use, before he had a right to call for it, does not affect the question. It was a payment to him according to the terms of the contract, and the defendants, as a matter of law, are entitled to an allowance accordingly. Upon this point the exceptions must be sustained, unless the plaintiff shall decide to correct the verdict by remitting the amount of the draft, and making the proper correction of interest. Ordered accordingly.