Haydenville Mining & Manufacturing Co. v. Steffler

Opinion by

Rice, P. J.,

One John Seibert had a contract for the erection of a school building in the city of Pittsburg. In July, 1897, he entered into a subcontract with one Alexander Dickey whereby the latter undertook to furnish and put in place all the fireproofing and concreting over the same according to plans and specifications of the architect and under his direction and to his satisfaction. Dickey performed his part of the contract and was paid the stipulated price. In order to carry out the same, Dickey ordered of the plaintiff twenty-two carloads of fireproofing of specified forms and dimensions, which were duly delivered at the school building and were received and used by Dickey. In giving his order he used a letter head bearing the name, “Darlington Fire Clay Co., 704 Penn Building, Pittsburg, Pa.,” and signed the order, “ Darlington Fire Clay Co., per A. Dickey.” This action for the price was brought against Henry E. Steffler, John Brown and Orna Planfray, “partners doing business as Darlington Fire Clay Co.” Han-fray was not served. An affidavit of defense was filed on behalf of the other two defendants denying the alleged partnership between them and Hanfray, denying also that the fireproofing had been' ordered by or delivered to them, and alleging that they were partners in the business of manufacturing fire briclc under the name of. Steffler and Brown. It is thus seen that under the pleadings the burden of proving the alleged partnership or an ostensible partnership under the name of “Darlington Fire Clay Co.” and the delivering of the fireproofing to them or to one of their number or to their agent acting within the general scope of the business or of his employment, rested on the plaintiff.

On the trial of the case, Hanfray, when called as a witness by the plaintiff, testified in effect that he was not a partner and had no actual or beneficial interest in the business. Thereupon, upon the plaintiff’s motion, the record was amended by striking out Hanfray’s name as a party defendant. The plaintiff then took the position that the partnership as originally formed was between Dickey, Steffler and Brown; that they purchased the plant of Darlington Fire Brick Company with the intention of carrying on the business of manufacturing fireproofing; and virtually that Dickey’s interest in the concern was put in the name of Hanfray, his stepson, in order to protect it against his, Dickey’s, creditors. The defendants while conceding that there were negotiations for the formation of a partnership between them and Dickey, alleged that the latter fell out; that the title to the real estate was taken in the name of Steffler, Brown and Hanfray, but that the latter’s interest therein was subsequently sold at sheriff’s sale. The testimony of Steffler and Brown may be summarized in general terms as denying that at the time of the transaction in suit there was a partnership between them and either Dickey or Hanfray, and as alleging that the business carried on by them in the name of Steffler and Brown was the manufacture of fire brick. It would serve no good purpose to incumber this opinion with citations from the testimony, corroborative of the conflicting allegations of the parties. A critical examination of it has convinced us that the learned trial judge committed no error in saying to the jury that the alleged partnership with Dickey or Hanfray was denied, and would have committed grave error if he had charged them that it was admitted or was established by uncontradicted testimony. The same is true of the plaintiffs’ contention that if as between themselves there was not a partnership, yet there was an ostensible partnership which as to the world made these defendants responsible for the acts or contracts of Dickey or Hanfray. These were mixed questions of law and fact depending for their decision upon the credibility of witnesses and the inferences to be drawn from their testimony. The court could not do otherwise than submit them to the jury with appropriate instructions, which we think was done.

But assuming that there was an actual or an ostensible partnership between these defendants and Dickey or Hanfray under the name of Darlington Fire Clay Company was the contract of Dickey with the plaintiff within the scope of the partnership business ? Or, if it was not in the scope of the business for which the partnership was formed, were third persons dealing with Dickey warranted in assuming from the acts or declarations of these defendants that it was within the scope of his authority as a partner or as manager? It is to be observed that this plaintiff, although affected with notice of the fact, or at least with such notice as put it upon inquiry, that this purchase was made for a specific purpose, apparently made no inquiry as to the persons constituting the Darlington Fire Clay Company, or as to the relation of that firm to the erection of the school building for which the fireproofing was ordered. It certainly cannot be contended that either Steffler or Brown did anything to mislead the plaintiff or that the plaintiff was induced by anything that they said or did to believe that Dickey had authority to bind them in a contract of this nature. In other words neither of them had any communication with the plaintiffs. The latter’s negotiations were with Dickey. Nor is it pretended that the defendants received or shared in the benefits of the transaction. It was, to say the least, an open question whether the manufacture, purchase or sale of fireproofing was within the scope of the business conducted by the defendants. It is not for us to determine the fact; that was the province of the jury. And, evidently, the plaintiffs’ counsel so regarded it upon the trial, for they presented no request for special instruction upon that, or any other point, although they were warned by the defendant’s fourth point that the question was raised. It was clearly a question of fact as the court correctly held in refusing the defendants’ point and was for the jury. In the absence of special request for more specific instructions, it is well settled that if no particular error of law or misstatement of the evidence can be pointed out, the court will be reviewed on the general effect of the charge and not upon sentences or paragraphs disconnected from the context which qualifies or explains them; if, as a whole, the charge was calculated to mislead, there is error in the record; if not, there is none. That there was evidence tending strongly to corroborate the plaintiffs’ contention as to the existence of the alleged partnership and as to the scope of the business, which the trial judge might appropriately have recited more in detail, is true. It is equally true that there was very strong evidence tending to contradict the testimony of Dickey, the plaintiff’s principal witness, to which no specific allusion was made in the charge. The controlling questions, however, were fairly and clearly stated with sufficient reference to and recital of the evidence to enable the jury to understand them. Perhaps if we were the tribunal to pass upon the credibility of the witnesses and to draw inferences of fact from their testimony, we might reach a different conclusion from that arrived at by the jury. We have not undertaken to show that their verdict was the only one that could have been fairly rendered under the evidence. We are convinced, however, that the case was for them, that no particular error of law or material misstatement of the evidence can be found in the charge, and that as a whole it was neither so inadequate as to be misleading, nor one-sided.

All the assignments of error are overruled and the judgment is affirmed.