Miles v. Wann , 27 Minn. 56 ( 1880 )

Berry, J.

The testimony in this ease fairly tended to* show the following facts: JohnWann, as guardian of Thomas L.Wann, his minor son, 16 years of age, executed what purport to be sealed articles of partnership between said Thomas and one Von Deyn. The business of the firm was the manufacture of brushes, in St. Paul. JohnWann had no authority to act for his son in the premises, either as guardian or otherwise, and there was no evidence establishing any adoption or ratification by the son of his father’s acts, either in executing the articles, or in carrying on the business. The articles required said Thomas to put $5,000 into the capital of the concern. This was in fact put in by JohnWann, out of his own means. By the eighth article of the partnership-agreement, it was agreed that, in the absence of Thomas, who was in Europe, John Wann should keep the firm books; and, in the tenth article, John Wann is acknowledged to have-power, as the guardian of Thomas, to represent his interest; to act for the firm the same as if Thomas were present and acting; to sign checks, draw drafts, sign notes, adjust accounts, — all in the firm name; and to receive all moneys-that Thomas might be entitled to from the firm; and, generally, to have the same authority and control over the business of the firm as Thomas would have, if he were present and acting. The entire business of the firm was, in fact, con ducted by Von Deyn and John Wann. All moneys drawn but of the concern, nominally on account of Thomas, (which averaged about $65 a month,) were drawn out by John Wann, and mingled with his private funds, without in any way keeping or attempting to keep them separate, although he remitted money to his wife, from time to time, to defray the expenses of herself and children, Thomas included.

All this goes to show that John Wann and Von Deyn established a partnership in fact, Von Deyn acting for himself, and John Wann nominally (but without any authority) for his minor son, who never ratified or adopted what was assumed to be done for him; that John Wann furnished the capital, took part in conducting the business, and drew money out of the concern, at the rate of $65 per month, and appropriated the same to his own use. These facts go to prove that, whatever might have been John Wann’s real intention, the effect of his conduct, as respected third parties, was to constitute a partnership between Von Deyn and himself, of which Thomas Wann was not a member. What would have been the effect of a ratification or adoption by Thomas of what was done by his father, we do not attempt to determine. It was very proper for the plaintiff, upon this state of the evidence, to dismiss the action as respected Thomas Wann; but as he had declared against a partnership consisting of Von Deyn, Thomas Wann and John Wann, it would have been very proper for him to have amended his complaint to correspond with the state of the proof.

According to the rule laid down in Fetz v. Clark, 7 Minn. 159 (217,) the complaint setting up a contract by a partnership composed of Von Deyn, Thomas Wann and John Wann, there could be no recovery, except against the partnership so constituted. Some doubt was expressed as to the propriety of the rule in Town v. Washburn, 11 Minn. 268, and we think the case at bar very well illustrates the injustice of its operation. If it was technically correct, it certainly did not tend to promote substantial justice. At any rate, it has been abrogated by Laws 1873, c. 67, (Gen. St. 1878, c. 66, § 266,) which provides that “whenever two or more persons are sued as joint defendants, and on the trial the plaintiff fails to prove a joint cause of action against all, but proves a cause of action against one or more of the defendants, judgment may be rendered against him or them against whom the cause of action is proved.” Reed. v. Pixley, 22 Minn. 540. Under this provision of statute, it would' have been entirely proper to render judgment against Von Deyn and John Wann alone, as partners constituting the partnership of Von Deyn & Co., if it appeared that Thomas Wann was not a member of the partnership. The district court appears to have granted the defendant’s motion to dismiss, upon the ground that John Wann was not shown to be a partner in the firm of Von Deyn & Co., and, as we conjecture, upon the rule of Fetz v. Clark. Upon further reflection, the court was of opinion that the evidence tended to establish that John Wann was a member of said firm, and that therefore the dismissal was wrong, and a new trial should be granted. But, without reference to the particular ground upon which the dismissal was granted, we think it was erroneous, for'the reasons before assigned, and that the new trial was properly awarded.

Order affirmed.