Salt Lake City Brewing Co. v. Hawke , 24 Utah 199 ( 1901 )

BARTCIL, L,

having stated the case as above, delivered the opinion of the court.

On this appeal the first assignment of error relates to the fourth finding of fact, which reads: “That on the eighteenth day of August, A. D. 1900, at Erisco, Beaver county, State of Utah, the said defendant William Hawke had and received of the money of the plaintiff the sum of $500; that the said sum of $500 had and received from the plaintiff by the said defendant William Hawke was obtained by the 1 said defendant William Hawke for his sole and individual use, and without the knowledge or consent of the defendant William Andrews; that the said defendant William Andrews, and the 'firm of Hawke & Andrews, received no benefit whatever therefrom, and no part of said snm of $500 was procured for or received by the said defendant William Andrews, or the said firm of Hawke & Andrews.” The appellant contends that this finding is neither justified nor supported by the proof, and upon careful examination of all the evidence the conclusion seems irresistible that such contention is well founded. It is difficult to see by what process of reasoning, from the facts and circumstances in evidence, the court found that the firm was liable for the goods, but only one member thereof for the money, when both the goods and the money were ordered by the same person, at the same time, and in the same way, and evidently for use in the business. The defendant Andrews himself testified that Hawke, who sent the letter containing the order for the goods and money, was the managing partner, bought the goods, and generally ran. the business of the firm; that Hawke, but three days previous to the pay day at the Horn silver mine, had told him that they needed money in the business -on pay day, and he would send to the plaintiff for it; and that he objected to him procuring the money, but failed to notify the plaintiff not to send it, offering as the only excuse for not giving such notice that he thought he would not be responsible for it. Thus from this testimony a reasonable inference would seem to be that Hawke ordered the money for the use of the firm, and that Andrews was after all not inclined to interfere, so as to prevent the procuring of it, because he would not be liable for its repayment. It can hardly be said that this was dealing fairly with the plaintiff. Again, it is shown in evidence that it was usual for business concerns in Frisco to cash cheeks on pay day, and that on the previous month the firm procured money from the appellant for the same purpose, 'and procured it in the same way, by the same partner, with the knowledge of the respondent, and, so far as appears, without any objection thereto by him, and that such checks were cashed with the money in his presence and with his knowledge. Doubtless, in the judgment of the managing partner,, the firm needed the money over which this controversy arose to cash checks for the miners who patronized the saloon. From the facts and circumstances shown by the evidence, it seems clear that Hawke had implied authority to transact all the legitimate business of the firm, and to bind the firm within the scope of such business, and that the firm was bound by the transaction in controversy. The law is well settled that,, in a trading partnership, a partner may enter into any contract or engagement for the firm in its ordinary trade 2 and business, and may buy, sell, or pledge goods, borrow money, or do any other acts incident or appropriate to such business, according to the ordinary course or usages thereof, and, as between the firm and those dealing with it in good faith, without notice, it is not material whether or not such partner is acting fairly with his co-partners in a particular transaction, so long as he is acting within the scope of the firm’s business and of his authority. When, therefore, as is indicated by the evidence in this ease, money is borrowed by one member of a firm on the credit of the firm, according to the usual course of its business, and within the general scope of its authority, the partnership is liable therefor. Hoskinson v. Eliot, 62 Pa. 393; Pahlman v. Taylor, 75 Ill. 629; Randall v. Merideth, 76 Tex. 669, 13 S. W. 576; Rich v. Davis, 4 Cal. 22; Smith v. Collins, 115 Mass. 388; Dowling v. Bank, 145 U. S. 512, 12 Sup. Ct. 928, 36 L. Ed. 795. Nor, where a transaction of one partner is for the firm and within the general or apparent scope of the partnership business, is it a matter of any consequence that the writing 3 evidencing the transaction is signed with the name of the individual partner only. Reynolds v. Cleveland (N. Y.), 15 Am. Dec. 369; Muldon v. Whitlock, 1 Cow. 290, 13 Am. Dec. 533; Schemerhorn v. Loines, 7 Johns. 311. Erom the foregoing considerations we conclude that the finding in question is the result of such a manifest oversight or mistake on the part of the court, as .to tbe proof, tbat it can not be upheld.

The appellant also insists that the court erred in permitting the witness Olsen to 'testify, over the objection of the plaintiff, as follows: “Q. I will ash you if you heard anything said by the defendant Andrews to McLeod, after McLeod had taken possession of the premises there, and, if so, what ? A. Andrews told McLeod to let him in his house, but he would not do so until I told him. Then he wemL and 4 opened it. I didn’t think he had a right to close him out, I said, according to law; and Andrews said: T am not responsible for that money. I did not have anything to do with it. I did not know anything about it. You have wronged me. I don’t know anything about it.’ ” We are of the opinion that the admission of this testimony was prejudicial error. It was clearly hearsay, and the statement of the defendant Andrews at that time, after he found that there would be an attempt made to hold him liable for the money borrowed by his partner, was simply a self-serving declaration, and was not admissible in evidence for any purpose.

Because of the errors complained of herein, the judgment, in so far as it was appealed from, must be reversed, and the case remanded, with directions to the court below to grant a new trial as to such portions of the judgment. The respondent is to pay the costs of this appeal. It is so ordered.

MINER, O. L, and BASKIN, L, concur.