Burgan v. Cahoon

The opinion of the Court was delivered, November 7th, 1881, by

Green, J.

In this case the plaintiffs claimed that the defendant, R. P. Burgan, by his acts and declarations, held himself out to them as a member of the firm of Burgan Bros., and that they were thereby induced to sell the bill of lumber in controversy, to that firm, upon this reasonable belief on their part that he was a member. In support, of this allégation, testimony was given. What it was in all its details we do not know. The counsel for the plaintiff in error has printed the testimony of his own client in the appendix, but he has printed none of the testimony of the defendants in error who were the plaintiffs in this action-. This is in entire disregard of the rule which requires all the testimony to be printed, where the writ of error is to a judgment on a verdict, and is .a practice which ought to be abandoned. In a case like the present, where the questions raised by the assignments of error depend upon the testimony delivered on the trial, it is absolutely essential that all the testimony affecting those questions should appear in the paper-book. We shall and do assume that all the evidence to which the judge who tried the cause refers in his charge when speaking of the acts and declarations of the defendant, was actually introduced before the jury. The charge, upon this branch of the case, was a most careful and correct statement of the law applicable to the subject, accompanied with cautious restrictions as to the kind of facts which must be found in order to justify a verdict for the plaintiffs. Thus the learned judge said to the jury: “The evidence from which you would have to find that he has so held himself out and acted as a partner, must be his acts in connection with the circumstances that were known to the plaintiffs when they gave him credit, and not only must his acts have been such as to justify a reasonable belief that he was a partner, but, to hold him on that account you must further find as a matter of fact that they gave him credit as such, because if they did not, his holding liimself out as a partner would do them no harm. I call your attention to this because we admitted some evidence on that view of the case.”

The learned judge then recounts a number of facts as having been given in evidence on this part of the case by the plaintiffs. He says, “ The principal facts that the plaintiffs rely on in this branch of the case, namely, that while they insist that he was in fact and intention a partner, that even-though he were not he held himself out to them as such, are, that one of the firm of the plaintiffs went to Mansfield, where Burgan Bros, did business, and called on R. P. Burgan; that he talked to him (R. P. Burgan) about selling lumber, and he talked to him, as they claim, in such a way that he should have seen that they supposed him to be a member of the firm ; that he (Burgan) discussed the lumber question, prices, and so on, and sent him around to see his brother at the place of business where the firm name was Burgan Bros. That finally a bargain was made, and R. P. Burgan asked afterwards about it, and approved it, and afterwards at Mansfield, in negotiations for purchase of lumber, R. P. Burgan was the party that they (plaintiffs) went to; that he talked about what he would do; that he, in conjunction with John, made the settlements; that he acted as principal man, giving the directions, doing the figuring and the like ; that be wrote letters in the firm name of Burgau Bros, ordering lumber — these and various other circumstances that have been given as to the manner of doing business. Plaintiffs claim that those acts under the circumstances were such as not only to lead them to reasonably believe that Robert Burgan was a member of the firm, but that he must have known that they were so treating him.”

There is no assignment of error to this portion of the charge, nor any allegation that these facts were not given in evidence. We are, therefore, in the absence of the actual testimony, bound to presume that all the facts stated by the Court in the charge as above quoted, was proved on the trial, and if so, they were sufficient to justify the jury in finding that the defendant, R. P. Burgan, held himself out to the plaintiff's as a member of the firm and in rendering a verdict against him.

There was another aspect of the case. The plaintiff's claimed that R. P. Burgan was liable because his wife was a member of the firm, from October 11th, 1877, and during the time when the debt in suit was contracted. On that date D. B. Burgan, who was a member of the firm, but was sick and shortly after died, assigned his interest to the wife of R. P. Burgan, and from that time it appears that she and John H. Burgan were actual members of the firm. The Court was asked by the plaintiffs to charge that the mere fact of her membership with her husband’s knowledge and consent would make him liable for debts contracted during her membership. This request was refused, but the Court proceeded to state that he would be liable if the jury found certain other facts enumerated in the answers, as to which considerable testimony was given. This answer is assigned for error, but it is very clear there was no error in it if the facts referred to were known, and of that the jury were to judge. Most of the testimony as to these facts came from the defendant himself.

The second assignment of error calls in question the answer of the court to the defendant’s third point. The point was refused in terms, but was affirmed if the jury found the facts as stated in the point without other controlling circumstances in regard to the relations of R. P. Burgan to the business' in connection with his wife being the nominal partner. The point might have been affirmed absolutely if it had not required a direction to find for the defendant upon ¡the hypothesis of the facts stated in the point subject only to the qualification of a finding that the defendant had held himself out as a partner. This branch of the point ignored the effect of all of the other class of facts growing out of the relations of the defendant with his wife as a member of the firm. It was therefore necessary for the Court to add that qualification, and in doing so there was no error.

There was clearly no error in the matter complained of in the third assignment, because it was based upon a finding of all the other facts in the case in addition to those testified to by the defendant. In that contingency, of course, the verdict should be for the plaintiffs, and this was all the Court said.

There was no error in amending the record by striking out the name of the wife. She had been joined originally in the suit, and therefore could be stricken out, on motion of the plaintiffs. Whether her husband was liable as a member of the firm by reason of holding himself out as such to the plaintiffs, or by reason of acts done by him as her husband in connection with her membership, the amendment was equally proper.

Judgment affirmed.