Atherton v. Tilton , 44 N.H. 452 ( 1860 )

Bell, C. J.

The charge which the defendant’s counsel requested the court to give to the jury, that “ the contract between Atherton and Shaw, taken in connection with the other evidence in the ease, made them partners,” was not proper to be given, unless it made them general partners. If a position is true in some degree, and for some purposes, yet if given unqualifiedly, as requested, it is not true, and is calculated, if so stated, to mislead the jury, it ought not to be given.

The purpose of the defendant in raising the question, whether Atherton and Shaw were not partners, was to defeat the action of Atherton alone. The question on that view of the case was, not whether they were partners in any sense, or in any degree, or for any purpose, but whether they were partners in the contract which formed the ground of action. They might be partners in other transactions; the question here was, if they were partners in the transaction in suit.

Now as between these parties they were clearly not partners. Atherton agreed to employ Shaw to labor for him in his business ; to settle with him monthly, and to pay him one half of the net profits of the business. Shaw was a laborer for Atherton. Atherton owned and controlled the business, and the property embarked in it. Shaw had no interest in any part of the business, or of its profits or proceeds, until a settlement had been made, the half profits ascertained, and the amount paid over to him. It was then that he first became owner of his share of the profits, but that share he did not hold as a partner. Atherton had no longer any interest in that share after this payment. It was the sole property of Shaw. As between themselves this was no partnership. The purchases of stock made by Atherton were on his own credit, for his own use, and the property purchased was his own, and when manufactured it was still his ; if sold by Shaw according to the written contract and Shaw’s testimony in regard to it, it was sold as Atherton’s property. Shaw had no interest in the property, or in the price of it, until by a settlement it was determined that there were some net profits accruing from the business, when he would have not a partner’s but a creditor’s claim for the half of those profits, as his compensation. But he had no right or interest even in the profits of any particular adventure; as, for example, in the sale to the defendant here in question. From that transaction a good profit might accrue, but if other sales of the month, other purchases or contracts, were at a loss of a greater amount than those profits, Shaw had no claim to any compensation, because there would be no net profits, which alone furnish the measure of his compensation.

"Where parties are not partners as between themselves, but one party, under whatever pretense, shares in the profits of the business which the law regards as the legitimate fund to defray the losses, the party who thus takes the profits is held chargeable as a partner for all the debts of the concern contracted with persons ignorant of their true relations. They are so held" on considerations of public policy, and for the purpose of discouraging frauds for which otherwise partnerships would form a very broad cover and screen. This liability is not founded on the existence of any partnership relation whatever, actual or presumed, and is not affected though it should appear that there was no partnership in fact.

Here Shaw might perhaps be liable under the contract between him and Atherton, if its existence and character were kept secret to the creditors of Atherton, for the debts incurred in the course of the business. But here there is no question of liability for debts. The question was as to the person by whom and with whom this contract of sale was made. If the property sold was Atherton’s; if it was sold by him, through his agent Shaw, as his property ; if the contract of the defendant was made to pay him for jt, the present action was well brought, and this none the less though the man who sold the property might well maintain an action against Atherton and Shaw for the price of it, on the ground that as to him they were liable as partners. But if the boiler was bought by Shaw as the agent of the plaintiff on his credit, and it was paid for by the plaintiff, and if it was sold by Shaw as the plaintiff’s agent, as the property of the plaintiff, the plaintiff can well maintain this action.

On the other hand, if Shaw, in pursuance of the negotiation between himself and the defendant, without reference to any agency of Shaw for Atherton, went with the defendant to the shop of Davis, and there purchased the boiler as for himself, and sold it as his own property, it might be questionable if the plaintiff' must not be the sufferer for the wrongful acts of his own agent.

So if tbe sale was made to the defendant by Shaw, in pursuance of an arrangement between Shaw and the plaintiff, that Shaw should sell the boiler to the defendant in payment of his own debt, and that the boiler should be charged by Atherton to Shaw, then Atherton must look to Shaw for his pay, and has no claim whatever ■on the defendant, Tilton. These were the views of the judge who tried the cause, and they were presented, clearly and distinctly to the jury. The charge as made was in our judgment correct, and the charge requested was properly refused.

The nonsuit was properly declined, because the evidence did not necessarily prove the plaintiff' and Shaw to be partners, even if it was capable of such construction as to justify that conclusion. There was evidence tending to prove that they were not partners, which it was competent for the jury to weigh, and their verdict finding that fact could not be set aside as against or without evidence.

Exception was taken to the admission of Davis’ testimony as to the statements of Shaw to him, after Tilton had gone away, as to his buying the boiler as agent for Atherton, and as to Atherton’s agreement to pay for it as purchased by Shaw for him. ¥e think there was no foundation for the exception. Statements and recitals, made in the presence of a party, are often admissible on the ground of presumed assent, but not declarations of third persons made in the absence of the party to be affected by them. But the statements testified to by Davis were not recitals of a past transaction. They were part of the negotiation then actually taking place between Shaw, as agent of Atherton, or for himselfj for the purchase of the boiler. To this transaction Tilton was no party, and what was said could derive no credit from his presence, or from any presumed assent of his. It was a material fadt that the boiler in question was the property of the plaintiff, and equally material-to show how it became his, and it was material and competent for the plaintiff to show what passed between the parties relative to the purchase as indicating for whom the purchase was made.

Judgment on the verdict.