Thurston v. Perkins , 7 Mo. 29 ( 1841 )

Opinion of the Court by

Tompkins, Judge.

Perkins, Hopkins & White, brought their action in the circuit court against Charles Collins, and said James 0. Thurston, on a note purporting to be made by said Collins & Thurston, to Smith, Salisbury Soco., and by them assigned to said Perkins, Hopkins & White. The circuit court gave judgment against said Collins & Thurston; and Thurston now appeals to this court to reverse the judgment of the circuit court against himself.

Thurston had, by a separate plea, denied the execution of the note, which is the foundation of the action.

The plaintiffs in the action first proved the note to be made by Charles Collins, one of the defendants in the circuit court, in the name of Collins & Thurston ; and also, that the assignment of the note was in the handwriting of Benjamin P. Smith, one of the firm of Smith, Salisbury & co.

The plaintiffs then read in evidence an instrument of writing to this effect: “ This agreement, made and entered into this 22d day of June, A. D.1839, by and between Charles Collins and James C. Thurston, both of the city'of St. Louis and State of Missouri, witnesseth, that said Collins & Thurs-ton have agreed, and hereby do agree, to become copartners together in the wholesale and retail dry goods and domestic commission business, in the city of St. Louis, under the name, firm and style of Collins & Thurston; which said copartnership shall continue for the space of five years from date. And to this end the said Thurston agreed to advance towards the capital of said concern, the sum of two thousand dollars in cash, and to devote his time and active services to the interests and business of said firm. The said Collins agrees to advance towards the capital of said concern the sum of ten thousand dollars, which amount he binds himself to pay into the said concern within twelve months from the date of these presents. It was also agreed by and between the said Collins & Thurston, that the said Thurston was to be the active managing member of the said concern; also, that the said Collins & Thurston were to share the profits, and bear the losses, as the case may, &c.”

Some time after entering into this partnership, Thurston went to New York, from which place he wrote to Collins that he could not buy goods on any terms whatever; that Collins’ friends were willing to do any thing and every thing for them both, they could do consistently under the present circumstances. But in consequence of some of his paper being protested there some time before, it all proved of no effect. Thurston further wrote that, after learning how the matter stood, he consulted both Collins’friends and his own, and they “ advised him by all means to give it wp”

He also recommended to Collins a dissolution of partnership ; and to that end sent on two instruments of writing executed by himself, which he desired Collins also to execute. This letter of Thurston was dated 7th August, 1839. The instruments of writing sent as above mentioned by Thurs-ton,-were signed Charles Collins, by an attorney in fact, acting under a very comprehensive power from Collins. He notified Thurston, but not Collins of his act. No publication was made, either of the commencement or the dissolution of the partnership.

Thurston moved for a new trial, because the verdict of the jury was against evidence; and he had discovered new and material evidence, and had by extraordinary and unexpected events, been detained from attending to the trial of the cause. The new evidence is, that he can prove by one Benjamin P. Smith, one of the payees of the note sued on, that at the time he was in the city of New York, in the summer of 1839, whither he had gone to purchase goods for the firm of Collins and Thurston, and after he had abandoned the idea of purchasing goods for and on account of said firm, and after he had written to St. Louis that the articles of copartnei’ship might be annulled, that he was introduced by said Smith to said plaintiffs, but that he not only did not offer io purchase goods from them for and on account of said Collins & Thurston, but that he did not inform them that such a firm had ever been formed or contemplated; that he could also prove by said Smith, that he, said Smith, had informed said Collins of the annulling of the said articles of co-partnership between him and the affiant, three or four weeks before any purchases were made by said Collins on account of the firm of Collins & Thurston.

Where ar ties enter in-co-partner- °f slpp for acer- and Pthereaf-transact business as-co-partners, J and*^ as the rest of the commumty is concerned, until the community fied<of1the°ti .dissolution.

That Collins should, when he went to New York to purchase the goods, which were the consideration of the note here sued on, leave behind him in the hands of an agent, a power of attorney of so extensive a character as to enable that agent to make void any act he, Collins, might do during that absence, seems so extraordinary an act, that, even the power had been declared in express terms, we might with good reason 'suspect such act to be tinctured with fraud. As then he did not express in clear terms his intention to give this agent so extensive a power, it is but charitable to suppqse that he never intended to give him such a strange power. But even if it could be inferred that Collins did honestly confer on his attorney in fact such power, and that this attorney did in his own person notify Collins of his act before the execution of this note, it would amount to this only, that Thurston, the plaintiff in error, had entered into a partnership with Collins, of which, although notice had not been given in the newspapers, yet we are at liberty to believe that the notice of such partnership might have been extensively circulated by the numerous friends who generally assist in such business. Certain it is, that Thurs-ton himself tells us that he had himself communicated in New York the information of this partnership, so far as to find that he could not purchase goods on its credit. Both his friends and those of Collins had been informed of its existence, for he says they advised him by all means , . •/ */ j It

But it is an admitted fact, that Collins and Thurston had entered into articles of agreement to become partners five years from the day of the date. The world is not, to look into their affairs to see whether they did actually J J trade, in order to consummate such partnership, but they are to be held and considered as such from the date, so far as the rest of the community is concerned, until this com-mun^y's duly notified that they have dissolved it.

The evidence, then, appears to have been sufficient to jus-jury filing the verdict on which the court entered up the judgment; and even if the appellant, Thurs-

,, , , . , . , ton, could prove all that he expects to prove, on anew trial, *he jury ought, in my opinion, to find against him.

The judgment of the circuit court is therefore affirmed.