Unger v. Walter Fisher Co.

McGowen, J.,

delivered the opinion of the court.

Declaration on open account filed by the Walter Fisher Company, in the circuit court, against the South Side Grocery Company, suing J. P. and O. S. Unger for the amount of the balance of the annexed itemized account, one thousand two hundred two dollars and eighty-four cents, and charging that J. P. Unger and O. S. Unger operated the South Side Grocery Company as partners. An amended declaration was filed later seeking to re,cover one thousand one hundred ninety-two dollars and thirty-six cents. The defendants filed a counter-affidavit denying the correctness of the account, a plea of general issue, and a denial of partnership. There was a verdict by the jury and judgment thereon against both J. P. and O. S. Unger for the sum of five hundred eighty-six dollars and eighteen cents, and J. P. Unger appeals from that judgment.

In order to prevent confusion of names, we will hereafter refer to J. P. Unger as “Jim” Unger and O. S. Unger as “Sim” Unger.

The following essential facts are gleaned from the record :

There is no contention that Jim Unger, as a matter of fact, was a partner in the South Side Grocery Company; the court below so correctly found, and, accordingly, instructed the jury. If liable at. all, it is because the proof shows that he held himself out as a partner with his brother in the South Side Grocery Company.

The only proof in the record connecting him with the South Side Grocery Company are eight written orders to the same tenor in effect, written by Jim Unger, directing that they furnish articles necessary for a plantation to hands named therein. The first order in the record is as follows:

“5/5/17.

“Walter Fisher Co.: Please let Jake Mabee have

thirty lb. meat if you have it, six-bu. standard meal. The negro lost his order and this is a second one, so if another turns up don’t fill it.

“So. Side Grocery Co.

“By J. P. Unger.”

The last one is dated December 22,, 1922, and is signed South Side Grocery Company, by J. P. Unger. Other similar orders, many in number, had been misplaced or lost.

The record shows that more than two years before the date of this order the South Side Grocery Company had commenced doing business with the Walter Fisher Company; the South Side Grocery being a retail grocery store in West Point, Miss., operated exclusively by Sim Unger and his wife.

The' record does not show that at any time or place or to any person that “Jim” Unger or any one connected with the South Side Grocery Company had ever made any verbal or written representation that he was connected with it or his brother as a partner in the South Side Grocery Company, and the only testimony to be relied on for the plaintiff consists of these other lost orders, together with a statement of the manager of the firm, Mr. Fisher, that he had never had any conversation with “Jim” Unger, but that he considered “Jim” Unger as a member of the partnership conducting the South Side Grocery Company.

There was an effort to show that the brothers were connected together ii> some way in the cotton business in another part of the town; but in our opinion that wholly failed, and would havei no bearing upon the partnership contended for here with reference to the grocery business.

Jim Unger and Sim Unger testified that Jim Unger had no interest in the South Side Grocery Company; that they arranged between themselves that Jim Unger might purchase groceries from the wholesale grocery company to furnish his plantation in the country, and that they would be charged to the South Side Grocery Company, and that |Jim Unger would settle monthly with Sim Unger. It is also clear that the shipping clerk, or salesman, of the wholesale company, when Jim Unger first began to trade in this fashion, telephoned Sim Unger and was told that it was all right and to charge whatever Jim wanted to the South Side Grocery Company.

It is shown that, according to the custom of plantation owners, orders were sent for articles usually purchased by a plantation owner for his hands, and delivered by the grocery company to the hands at the store. It was shown that articles bought for the store by Sim Unger were delivered by the wholesale grocery company, the Walter Fisher Company, to the South Side Grocery Company, by means of their delivery wagon. It is shown that on one occasion the son of Jim Unger bought and had charged a tire for an automobile. It is shown that some articles were purchased by telephone order by the wife of Jim Unger.

Walter Fisher said “he knew that Jim Unger ‘belonged’ to the South Side Grocery Company,” but we are unable to find anything else in the record except these orders and this course of dealing to indicate the basis upon which Fisher acquired his knowledge or claimed to act. As we have before stated, the brothers denied that any partnership existed.

No bill was ever presented to Jim Unger, although in 1920 the South Side Grocery Company was in arrears. Jim Unger was never called upon to make any payment, nor did] the Walter Fisher Company ever demand from him, so long as the South Side Grocery Company was a going concern, any part of this account.

We unhesitatingly believe that these orders in this record only constitute the basis of an agency on the part of Jim Unger to make these purchases, and if there were any doubt about this conclusion, the letter written by the Walter Fisher Company to O. S. Unger on December 6, 1920, confirms us in our belief that Jim Unger never did anything or said anything to warrant the conclusion that the Walter Fisher Company were misled by his action in the slightest degree. We set that letter .out here:

“West Point, Miss., Dec. 6, 1920.

“Mr. O. S. Unger, City — Dear Sir: You owe us an old account which is very much past due, and you have not been reducing this. We will have to insist that you make some arrangements to settle this matter as we cannot carry it any longer.

“Very truly yours,

“The Walter Fisher Company.”

Having begun selling the South Side Grocery Company • two years before Jim Unger began giving these orders, and having rendered all its bills to O. S. Unger, and never having called on Jim Unger to pay the account of the South Side Grocery Company leads us to believe not only that Jim Unger did not hold himself out as a partner, but that the Walter Fisher Company could not have relied upon that holding out in its dealing with the South Side Grocery Company.

Before one can be held as a partner, where there is no pretense of an actnal partnership, there must be some holding out by word or deed or acquiescence in the act or representation of another on the part of the party that he is a partner. The proof in this case wholly fails to show any spoken words or act connecting Jim Unger as a partner. The court below should have excluded the testimony for the plaintiff so far as this appellant is concerned, and should have given a peremptory instruction that the defendant Jim Unger was not liable as a partner of Sim Unger for this account.

Reversed and judgment here for the appellant, Jim Unger.

Reversed, and judgment here for appellant.

Reversed.