Sargent v. Collins ( 1867 )

'Opinion by

Lewis, J., Beatty, C. J.,

concurring.

The plaintiff brings this action against the defendants Sheldon, S. W. Collins and four others, to recover the sum of fourteen hundred and thirty-eight dollars alleged to be due on a certain promissory note signed “ S. W. Collins & Co.,” and bearing date May 23d, a.d. 1864. It is alleged in the complaint that the defendants were partners, doing business under the firm name and style of S. W. Collins & Co., and that whilst so doing business they executed and delivered to the plaintiff the promissory note sued on. The summons ivas served only on Sheldon, and he alone answers the complaint. He denies that he was ever a member of the firm of Collins & Co., that he executed the note sued on, or that he is in any way liable upon it. To the answer, which fully and completely put in issue the liability of Sheldon, the plaintiff interposed a general demurrer, which was very properly overruled by the Court below, and the case proceeded to trial upon the complaint and answer. To establish the partnership between Sheldon and the other defendants, the plaintiff introduced in evidence two written contracts, entered into on the twentieth day of May, a.d. 1861, between Henry S. Fitch and A. Peck, parties of the first part, and S. W. Collins and N. P. Sheldon, parties of the second part, by which, in consideration of some mining ground to be conveyed to them, Sheldon & Collins agreed to run or construct a tunnel for the purpose of prospecting certain mining ground owned by the parties of the first part. Besides these contracts, the only testimony which appears to have been introduced by the plaintiff is related in the record as follows:

“ Henry S. Fitch testified that Collins & Co. commenced work on the mines about ten clays after the contracts were signed, and continued such work more or less until 1864 or 1865. Plaintiff was employed by Collins & Co. in a.d. 1862 to work on the tunnel, and plaintiff’s wife was also employed in cooking for the hands at work for Collins & Co. Saw defendant Sheldon at the work about three times in the fall of 1863 ; never heard him give orders about the work.”

Plaintiff Sargent: ■“ I worked for Sheldon & Collins ; Sheldon told me to get a stove at Kelley, Mott & Co.’s, which I did; Sheldon said that Collins would do all the business, and that whatever Collins did, he (Sheldon) would agree to.”

A. L. Collins: “ I was foreman of the mine, and saw the contract in Sheldon’s office the day it was executed; Collins, Gross and Martin gave me orders about the work; Sheldon never gave me orders.”

Bartholomew Canty: “ I worked at the mine in May, 1861; Sheldon paid me four or five dollars for work done on the mine; saw Sheldon at the mine once or twice ; he never gave me orders; Collins did.”

This appears to be all the evidence introduced by the plaintiff with respect to the partnership or the liability of the defendant Sheldon.

For the defense, Sheldon himself testifies that he Avas not a member of the firm of Collins & Co.; that he informed the plaintiff at the time he commenced work for Collins & Co. that he would not be responsible for any debts contracted by that firm ; that he gave Canty the four dollars alluded to as a matter of accommodation, and not to pay for work on the mine ; so Avith respect to the order given to the plaintiff for the stove.

S. W. Collins testified that the firm of Collins & Co. consisted of E. S. Gross, Minor S. Martin, Philip Richardson and himself; that Sheldon was not a member of the firm, and that he was in no way liable or responsible for its debts or the promissory note sued on; that he, Collins, signed the note on behalf of the firm of Collins & Co. This is the case as made out by the evidence presented to this Court. The testimony is very meagre and probably very incompletely reported; but we can only act upon what is before us, and there appears to be nothing in the record to justify a reversal of the judgment. To make the defendant Sheldon liable on this note, it was indispensably necessary to prove either that he was in fact a member of the firm of Collins & Co., or that he induced others to believe he was a partner, thereby giving credit to the firm and inducing third persons to deal with it accordingly.

If he were in fact a partner, and the copartnership were created for a purpose which would make it proper for each member of the firm to bind it by the execution of a promissory note, there would be no doubt of his liability in this action.

Whether Sheldon was a member of the firm, or whether he held himself out as such to the public, are facts not by any means established by the evidence as it is brought before us.

It is claimed by counsel for the appellant, that the contracts between Peck & Fitch and Sheldon & Collins, already referred to, created a partnership between the last two persons. They are doubtless joint contractors; but the contracts do not certainly develop a single feature of partnership between them. A partnership is defined to be a contract between two or more persons, by which they join in common either their whole substance or a part of it, or unite in carrying on some commerce or some work or some other business, that they may share among them all the profit or loss which they may have by the joint stock they have put into partnership. Do the contracts referred to show any engagement between Collins and Sheldon by which they mutually bound themselves to run the tunnel for Peck & Fitch, jointly sharing the profit and loss ? Certainly not. Though Collins and Sheldon contract jointly with Peck & Fitch to do certain work, that creates no contract between Collins and Sheldon by which they are mutually bound to each other to do such work on their joint contract. Notwithstanding the contract, each might do his own proportion of the work himself, furnish his own implements, or tools, and pay his own expenses, or might employ others to do his proportion of the work at his own expense. In such case there would be no such mutual obligations, liabilities or interest between them as to create a partnership. To create a partnership, there must be a contract, either expressed or implied, between the parties composing it, by which they join in some common enterprise, and share among each other the profit or loss. The mere fact of their joining in the contracts between themselves and Peck & Fitch, no more created a partnership between them than the joint execution of a promissory note would create such relation. But should a partnership between Sheldon and Collins be conceded as having been created by the contracts, the plaintiff’s case would not be strengthened in the slightest degree, because it is incontestably established that Collins & Co. was another partnership entirely, composed of S. W. Collins, E. S. Gross, Minor S. Martin, and Philip Richardson — not one of whom, except Collins, is mentioned in the contracts with Peck & Fitch— and there is not a word of evidence in the record tending to prove that Sheldon ever entered into a contract of partnership with these parties; but on the .contrary, S. W. Collins swears directly that he was not a member of the firm of Collins & Co., and so he swears himself. If, therefore, it be admitted that the contracts for running the tunnel created a partnership between Collins and Sheldon, it will not certainly be claimed that it also made Sheldon a partner with three other persons not mentioned in those contracts. It appears that Collins & Co. were engaged in prosecuting the work which Sheldon and Collins had contracted to perform, but Collins- & Co. may have been employed by Sheldon and Collins as subcontractors to run the tunnel, and indeed such seems to have been the fact. Sheldon not being in fact a member of that firm which executed the note sued on, is not liable on its contracts, unless he held himself out to the public as a member, and thereby induced third persons to deal with it. That he did so is not by any means established by the evidence. The payment of four dollars to Canty,, the order for a stove given to the plaintiff, and the remark which the plaintiff says was made to him, i. e., that Collins would do all the business and he (Sheldon) would agree to what was so done, are the only facts in the whole record tending to establish anything of the kind. They may tend to show that Sheldon held himself out as a partner in the firm of Collins & Co.; but he, in his testimony, denies having told the plaintiff that he would be responsible for what Collins did. On the contrary, he swears that he told plaintiff he had no interest in the mine, and would not be responsible for the debts of Collins & Co. The plaintiff’s evidence, even uncontradicted, would hardly be sufficient to establish Sheldon’s liability on the note; much less when explained away and contradicted by defendant Sheldon, in his testimony. In view of the weakness of the plaintiff’s case, as made out by the evidence and the conflict in the testimony, this Court cannot reverse the order of the lower Court refusing a new trial.

In the bill of exceptions presented to this Court, the appellant complains of two rulings made by the C.ourt below during the progress of the trial, and assigns them as error, each of which will be adverted to in their regular order. And first, it is claimed that the Court erred in allowing the defendant to read the deposition of S. W. Collins, counsel giving as a reason why it should not be placed in evidence that it was not taken by any person having the authority to take depositions. It seems, the deposition was taken in accordance with the following stipulation entered into between the counsel for the respective parties:

“ It is hereby stipulated and agreed by and between the parties, plaintiff and defendants in this action, that the deposition of the defendant, S. W. Collins, be taken at the City of San Francisco, State of California, before F. J. Thibault, Notary Public, on the day of November, a.d. 1866, and hereby waive all preliminary notice, commission and other forms. The deposition to be used by either party on the trial.”

F. J. Thibault, over his signature and official seal, certifies that the witness appeared before him in his office in San Francisco, on the eighth day of November, and made answers to the interrogatories propounded by the attorneys for the respective parties, which answers were properly returned to the Court where the action was pending.

The objection would have possessed more merit if counsel had not in the stipulation acknowledged Thibault to be a Notary Public, and had not agreed that he should take the deposition.

Were it not for the stipulation, plaintiff’s counsel might perhaps have required further proofs of Thibault’s authority to take the deposition, but the acknowledgment of his official character in the stipulation, and the agreement that the deposition should be taken before him, rendered any further proof of his authority unnecessary. It is not denied by counsel that it was taken by the very person agreed upon. Hence, to require further proof of his authority or official character would be superfluous; arid indeed, the stipulation would effectually estop the parties to it from denying such authority. Even if Thibault were not a Notary Public, or an officer usually authorized to take depositions, yet the parties, having agreed that he should do so, should not be permitted to come into Court and at the last moment interpose the objection that he had no authority to do the act which the parties agreed he should do. Their stipulation is all the authority necessary in such a case; the deposition was therefore properly admitted.

How the proof that Sheldon was not a member of the firm of Collins & Co. tended to contradict or vary the written contracts between Fitch & Peck and Collins and Sheldon, it is impossible to understand. Those contracts certainly, do not mention the firm of Collins & Co., and there is not a syllable in them tending to show that Sheldon was a member of that copartnership. To prove that he was not would not then, it seems, vary or contradict the written instruments. This objection to the testimony of S. W. Collins was also utterly untenable.

Judgment affirmed.