Bing v. Schmitt , 226 Pa. 622 ( 1910 )

Opinion by

Mr. Justice Potter,

Judgment of compulsory nonsuit was entered in this case, upon the ground that the proof of .a. partnership between Schmitt and Richmond was not sufficient to justify the submission of the question to the jury.. Our examination of the evidence leads us to a different conclusion upon this point from that reached by the learned trial judge. It made no difference whether there was a partnership -in fact or not, if the defendants represented themselves as partners to the plaintiffs, and thereby obtained their goods: Given v. Albert, 5 W. & S. 333; Reed, Crane & Co. v. Kremer & Co., 111 Pa. 482. There was evidence in this case, upon the part of the plaintiffs, that in the fall of 1905, Richmond told him” to “ go ahead and sell them, that he was in back of them, and the account would be all right.” That later on when spoken to about the account, Richmond said, “He would see that Mr. Schmitt would send them a check.” And that upon a third occasion, Richmond declared to the witness that it was all right to go ahead and sell to the restaurant, for he, Richmond, had a two-thirds interest in the place. In addition to these statements two letters from Richmond to Schmitt were offered in evidence, in which Richmond spoke in the tone and with the authority of an owner of the business. He used such language as, “We show a loss,” and “we have outstanding accounts” and “we will” refuse to pay rent; and after giving positive instructions as to certain things, he ended the first letter with the expression, “See if we cannot at least clear your salary.” In the second letter also, the word “we” was used with reference to the charges for operating, and in it Mr. Richmond proposed an equal division of the profits with Schmitt, instead of a salary.

There was certainly enough in all this to justify the submission of the question to the jury. Whether a person has held himself out as a partner, or permitted others to hold him out as such, is a question of fact. The plaintiffs were entitled to show either a partnership in fact, or that defendant Richmond had held himself out as a partner with Schmitt, in the operation of the restaurant: Shafer v. Randolph, 99 Pa. 250.

The judgment is reversed, with a venire facias de novo.