P. Hoffmaster Sons Co. v. Hodges , 154 Mich. 641 ( 1908 )

GRANT, C.J. (after stating the facts). The following issues of fact were submitted to the jury:

(1) Were the defendants actual partners ?

(2) If not, did defendant Halladay hold himself out as a partner ?

(3) Did defendant Halladay verbally promise to pay for the goods if defendant Hodges did not, and thus bring the case within the statute of frauds ?

(4) Were the goods purchased within the scope of the partnership business ?

(5) If they were not, was the purchase ratified by the defendants ?

(6) Was there an account stated ?

The court might with propriety have eliminated the first three issues from the consideration of the jury. Defendant Halladay did hold himself out as a partner. The defendants executed and published an announcement of a dissolution of the firm about the time this suit was commenced. There was therefore no controversy over defendant Halladay's liability as a partner, and no room for the application of the statute of frauds.

As to the fourth issue, the defendants claim that the articles in dispute were not, as a matter of law, within the scope of the partnership business, and that the court should so have instructed the jury. It is true that there is no implied power on the part of one partner to enter into contracts outside of the scope of the business without the assent of the other partners. Mechem on Partnership, § 165, where are found illustrations of the rule. What is within the scope of the business is more frequently a question of fact. Mechem on Partnership, § 166. In this case the defendants were engaged in furnishing and carrying on a hotel during the time covered by this account, extending over a period of about three years. Various things are required for the use of a hotel. This account covers carpets, napkins, curtains, thread, pins, and many other articles of dry goods of various kinds. Courts cannot take judicial notice that these things may not be useful in the customary furnishing and ornamenting of a hotel. One of the items involved is a carpet, an article very proper for use in a well-regulated hotel. The question is not to be determined by what the purchaser saw fit to do with the goods after they were purchased. This would not bind the plaintiff or fix the character of the purchase. Kritzer v. Sweet, 57 Mich. 617. The wife of defendant Hodges was called as a witness by the defendants, and she testified that she purchased some of these things for her personal use and that of her daughter; but the record fails to show that she so informed the plaintiff. She was authorized by the defendants to purchase things for the hotel. This question therefore was properly submitted to the jury.

As to the fifth question, there was evidence showing: That statements of the account were repeatedly sent by mail to Hodges Halladay; that they were received; that no objection was ever made to them; that some of the disputed items were among the first articles purchased; that Mr. Hoffmaster, one of the plaintiffs, saw Mr. Halladay and told him the character of the goods Mrs. Hodges was buying, and asked him about it, and Mr. Halladay replied: "That is all right;" that he also told Mr. Halladay that he had no personal account with Mr. or Mrs. Hodges, and that, "if he (Halladay) did not want them to run it in that way, he would stop them trading that way on this (the firm) account." Under these circumstances, the question of ratification became one for the jury. It follows from the facts above stated that the question of an account stated was properly submitted to the jury. Raub v. Nisbett, 118 Mich. 248; Pabst Brewing Co. v.Lueders, 107 Mich. 41; Armitage v. Saunders, 94 Mich. 482.

One other question remains. Error is assigned upon the instruction of the court directing the jury to render a verdict against Mr. Hodges in any event, leaving to their consideration only the liability of the defendant Halladay. It is urged that the defendants were sued on a joint liability as partners, and therefore a several judgment could not be entered. Counsel cite authorities in support of this proposition. We find it unnecessary to discuss the question. This point was made upon a motion for a new trial. Upon determining that motion the court said:

"There was no dispute about the liability of Mr. Hodges, and this fact was repeatedly stated, * * * particularly by defendants' counsel in his argument."

Counsel appeared for both defendants, and, if he made this concession, he cannot now complain. The finding of the circuit judge is conclusive upon this point.

Judgment is affirmed.

BLAIR, HOOKER, MOORE, and McALVAY, JJ., concurred.