Burnley v. Rice , 18 Tex. 481 ( 1857 )

Wheeler, J.

It sufficiently appears by the evidence, that Love and the plaintiff in error, Burnley, were joint owners and partners in the proprietorship and carrying eon of the plantation. Love was the acting and managing partner, having the sole superintendence and management of the business of the co-partnership. He contracted the indebtedness in question on account of, and to carry on the business of the co-partnership ; and pledged the partnership credit and effects for payment. This, in short, is substantially the case which the record presents ; and it would seem that there cannot be a question as to the law arising upon such a state of case. Unquestionably the debt thus contracted by the one partner, for the benefit and upon the credit of the firm, is the debt of the firm, and binding upon the other partner. But it is said Love exceeded his authority in contracting this debt, and his co-partner is not bound for its payment; because cotton had been previously cultivated upon the plantation, and this debt had been contracted in preparing for and carrying on the culture of sugar, and there is no evidence that Burnley consented to the change in the business of the co-partnership. To this it is a sufficient answer that the evidence conduced to the proof of a partner ship as well after as before the change from the cultivation of cotton to that of sugar. The parties concerned were joint owners and partners in the plantation before the change ; and there is as little cause to doubt that they were so, by their mutual consent and agreement, after the change. The evidence relates to a partnership in the carrying on of the plantation, without any especial reference to what was cultivated. The fact is, that cotton was first cultivated, and afterwards sugar ; but they still appear to have been partners, and to have held themselves out to the world as such, as well after as before the change. If the change was not within the scope of the partnership, and was not assented to by Burnley, it would certainly have justified a dissolution of the partnership. It is not to be supposed that he could have remained long ignorant of so important a change; or that he would have silently acquiesced, if he had not approved of and assented to it. He was in the country after the change and as late, it seems, as 1854 ; and nothing is heard of an intention to dissolve the partnership, or any dissatisfaction at the change in the conduct of the business by the managing partner. If it had appeared that the partnership articles or agreement restricted their operations to the cultivation of cotton, when that ceased, it might have been contended that the partnership, and consequently the power of one partner to bind the firm, was at an end. But as it does not so appear, it is a question of the continuance of partnership; and evidence sufficient to establish a continued partnership, is sufficient to charge the members with the obligations incurred by the firm. The silent acquiescence of Burnley, after he must have known of the change of cultivavation; the fact that he suffered his co-partner still to carry on the business, and contract debts upon the credit of the firm, without objection ; that he suffered the reputation of their partnership to continue ; his failure to produce at the trial the artides of partnership, or any evidence to show that the managing partner had exceeded his authority, except the mere fact that cotton had been previously cultivated, or any evidence that he had ever disapproved of the change, are cogent circumstances in support of the conclusion of the jury, that the change was made by his authbrization and express consent. The evidence was sufficient, prima facie, to warrant that conclusion, unless there had been something to show to the contrary.

There can be no question of the sufficiency of the evidence to establish the fact and amount of the indebtedness of the firm. “ The acknowledgment of one partner, during the continuance of the partnership, of a debt, as due by the partnership, will amount to a promise, binding on the firm.” (Story on Part. Sec. 107.) There was no occasion for the plaintiff to produce the original account; because it was not called for by the defendants ; it had been rendered and stated ; and was probably in the possession of the defendants, and might have been produced by them, if they had seen proper to contest any of the items of the charges. At least they should have called for its production upon the trial, if they would take advantage of its non-production. There are reasons why a negotiable note sued on, should be produced upon the trial, which manifestly have no application to an account.

It is objected that Burnley is not bound by the contract by which his co-partner sought to bind him, because they are described therein as “joint owners and cultivators,” and one joint owner, merely as such, has no authority to bind the other joint owners. ' Where two persons jointly purchase a plantation to be cultivated by them for their joint and mutual profit, I apprehend, the community of interest, business, responsibility and profit, would constitute them, not only joint owners, but partners also ; and that it sufficiently appears that the intention was, in this instance, to contract in that character. It is in proof that they were partners. The contract was made on the partnership account, and on the joint credit of the partners and this was suEcient to bind them, though the acting partner^ had contracted in his individual name, instead of the names of both. (1 Parsons on Con. Book 1, Oh. XII, Sec. XI; Story on Part. Sec. 243.)

The power of one partner to bind the firm, by contracts made by him in the name, and for the benefit of the firm, is not confined to commercial partnerships. (Id. Sec. 81, 82.)

There manifestly was no error in refusing instructions asked by the defendant ; or in refusing to submit to the jury the issue proposed by him. Special issues of fact were, by the agreement of the parties, submitted for the finding of the jury ; and the finding of those issues, with one or two exceptions, upon which proper instructions were given, involved no question of law. The jury were not required or permitted to apply the law to the facts but were only to find the facts, the Court reserving the application of the law to the facts so found. There manifestly would have been no propriety in giving the instructions proposed, and they were rightly refused. The issue tendered by the defendant, proposed an inquiry into a matter not in litigation. Besides, the parties had agreed upon the issues, and neither had a right to insist upon having others submitted. There is no error in the judgment, and it is aErmed.

Judgment aErmed.