Bradshaw v. Apperson

Ogden, J. There is manifest error in the charge of the court, wherein the jury were instructed that, “ If you believe from the “ testimony that defendants J. H. and George P, Bullard were “ secret partners with defendant Apperson at the time the “ notes sued on were executed, and that said notes were signed “ by J. H. Bullard, as the agent of Apperson, in furtherance “ of a fraudulent collusion of all of said defendants, for the pur- “ pose of fraudulently covering up the liability of said J. H. “ and George P. Bullard, and of thereby hindering and delay- “ ing the collection of said notes, then you will find the said “ defendants J. H. and G. P. Bullard jointly and severally “ liable with said Apperson, for the amount expressed in the “ face of said notes.” This charge contains two very grave errors, either of which would require a reversal of the judgment. In the first place the jury were instructed, that if the Bullards were the secret partners of Apperson, and that if J. H. Bullard signed said notes as the agent of Apperson, for a fraudulent purpose, then they were to find for the plaintiff the full amount expressed on the face of the notes, against all of the defendants, regardless of the further question, whether Bullard had any authority to sign Apperson’s name or not, or whether any or all of said notes were still due and unpaid, when in fact one of the notes had quite a large sum endorsed on it, as a credit. And if the jury obeyed the instructions of the court, as they should have done, then they found a judgment for the plaintiff for money he had already received and credited, and did not now ask a judgment for. Again, the principal controverted question was, whether or not J. H. and G. P. Bullard were the secret partners of the [138] defendant Apperson; and that simple question, unincumbered by other matters, should have been presented to the jury. If the Bullards were the secret partners of Apperson, then they were liable for all the partnership debts, regardless of the "question of fraud, or an attempt to evade the debts of Apperson or the Bullards. But the court in effect charged the jury, that it was not sufficient, in order to hold the Bullards responsible on the notes, that they were secret partners of Apperson, but that they must also have been engaged in a fraudulent transaction to defraud their own and Apperson’s creditors. This charge most certainly does not enunciate the law, in relation to the liability of secret partners, and may have misled the jury and vitiated their verdict. As this cause must go back for a new trial, and as the question of partnership must be again determined, it may not be improper here to remark, that it is believed to be now a well settled principle of the law of partnership, that a clerk in a mercantile house, or an employee in any firm or business, who receivés a. certain per cent, or portion of the profits of the firm, for or in lieu of a salary, is not thereby a partner, and liable for the partnership debts. But if a person stipulate for a certain portion of the profits as such, and not as wages, and becomes entitled to participate in the management and control of the business, and to.an account of the partnership affairs, such person may be presumed to have intended to make himself liable as a partner. The judgment is reversed and the cause is remanded. Reversed and remanded.