Stubblefield v. Roper , 136 Miss. 831 ( 1924 )

Anderson,'J.,

delivered the opinion of the court.

Appellant, A. P. Stubblefield, sued appellees, L. T. Roper and L. N. Dantzler, in the circuit court of Sunflower county, on a promissory nóte as partners. At the conclusion of appellant’s evidence, on the motion of appellee Dantzler, appellant’s evidence was excluded, and a verdict directed for appellee Dantzler, from which appellant prosecutes this appeal.

The suit was on a promissory note for three hundred eighty-seven dollars and fifty cents, signed alone by appellee L. T. Roper. Appellant alleged in his. declaration that the appellees, Roper and Dantzler, constituted a partnership; and that the note sued on, although signed alone by appellee Roper, was a partnership1 obligation, for the payment of which both of .the appellees as partners were liable. The partnership was duly denied according; to the statute by appellee Dantzler. On the trial appellant introduced the note sued on, and then introduced appellee Roper for the purpose of proving that a partnership existed between the witness and appellee D'antzler, and that the note sued on had -been incurred in and about the partnership business and was a partnership obligation, for which both of the partners were liable. In the evidence of this -witness it developed that the partnership contract between appellees Dantzler and Roper was in writing. Thereupon, on objection by appellee Dantzler, parol evidence as to the partnership was excluded; the articles of partnership not being produced by appellant, nor the failure to produce accounted for.

The question is whether, in a suit against an alleged partnership by a third person, where the contract of partnership is- in writing the plaintiff is barred from proving the partnership, except by the production of the partnership articles, and in their absence showing a lawful excuse for their nonproduction. Undoubtedly, in a suit between partners involving the partnership contract which is in writing', the contract itself must be produced as the best evidence, or its nonproductioii properly accounted for. But that doctrine does not apply in a case like this, unless the plaintiff relies on the articles of partnership to establish his cause. If that be true, then he must produce the partnership contract, or lawfully account for its nonproduction. But a third person, suing persons as partners, is not required to rely on the articles of partnership in order to establish liability. A partnership' may be liable to a third person, even though its dealings be without the scope of the partnership as set out in the partnership articles. The plaintiff in such case may establish liability by showing that the persons sued as a partnership dealt as such, and held themselves out to the world as partners. They may be liable as partners, regardless of the provisions of the partnership articles.

■ We hold, therefore,-that the trial court erred in ruling out appellant’s evidence tending to show that the note sued on was in truth and in fact the partnership obligation of appellees Roper and D'antzler, that a partnership' existed between appellees, and that although the note was signed by only one of tbe partners, its execution was within the scope of the partnership, and was intended by the partners to bind the partnership. For a very exhaustive note, see Cudahy Packing Co. v. Hibou, 18 L. R. A. (N. S.) beginning at page 975. See, also, 20 R. C. L., p. 847, sections 52 and 53; 30 Cyc., p. 415; Perry v. Randolph, 6 Smedes & M. 343, 344; Bonnaffe v. Fenner, 6 Smedes & M. 217, 45 Am. Dec. 278.

Reversed, and remanded.