Taylor v. Fried

Opinion by Mr. Justice McCollum, We think the evidence in this case is insufficient to sustain a verdict against the defendants. They were sued as joint debtors and under the instructions of the learned court below were held liable as partners on a purchase by one of them of a boiler which he used in drilling a well upon property they owned as tenants in common. The following facts are admitted, or established by un contradicted evidence : In the summer of 1891, W. P. Black, being the owner of an oil lease, sold to Jeremiah Miller one tenth, to Lewis Sands one tenth, to Lee Phillips one tenth and to Edward Fried two tenths of his interest therein. It was agreed between him and his vendees that he should furnish the necessary appliances and drill a well on the leased premises, and that Fried should pay to him two tenths of the expense incurred in drilling it, and each of the others should pay to him one tenth thereof. In accordance with this agreement the well was drilled and each vendee paid his proportion of the cost of it. It appears that Sands and Phillips were joint and equal owners of a boiler which they sold to Black, and that it was to be paid for by a credit to each of them of one half the price of it, on his share of the expenses. Black used it in drilling a considerable portion of the well and then bought a boiler of the plaintiff which he used in completing it. Neither of his vendees authorized this purchase, nor did they know of it until some time after he left the state without paying his debts. It was then that the plaintiff set up the claim that she sold the boiler to the owners of the leasehold and that they were jointly liable to her for the price of it. It appears that the boiler is charged in her book of original entries to “ W. P. Black and [57] Ed. Fried,” but it is admitted that her bookkeeper, to whom the sale was reported, charged it to W. P. Black, and that the words “ and Ed. Fried ” were added by her direction after her salesman told her Fried was interested in the well. Turning to the evidence of her salesman, we find that his information concerning Fried’s interest in the well was derived from Robert Black who was at most an employee of W. P. Black in the performance of the latter’s contract with his vendees. He was not the agent of W. P. Black’s co-tenants for any purpose and his statements to plaintiff’s salesmen did not affect them. We think it is clear that W. P. Black and his vendees were tenants in common of the leasehold, and that the agreement under which he drilled the well did not create a partnership inter se or a joint liability. It is quite evident that it was not the intention of the parties to become partners in the work to which their agreement was limited. It is probable that Black and his vendees believed, or at least entertained a hope, that the work contracted for would demonstrate that the leasehold was good oil property, but the latter did not consent to be jointly bound to the former, his employees, or material men, for all or any portion of the price of it, nor did their agreement include anything more than the drilling of the well. We have then a case in which one co-tenant improves or tests the common property under an agreement with each of the other co-tenants to pay his share of the expenses incurred in making the improvement or test. Thus the promise of each co-tenant created a distinct and individual liability which was measured by his interest in the leasehold. This liability was not affected by the mere fact that oil was obtained and run in the pipe line to the credit of each co-tenant in the proportion above stated, because (1) the operation of the well was not included in the agreement under which it was constructed, and (2) a division of the product between tenants in common does not make them partners, although they may have contributed labor or money to raise it: Lindley on Partnership, 18, 52, 53; 17 Am. & Eng. Ency. of Law, p. 853 ; Brown v. Jacquette, 94 Pa. 113, and Tupper v. Walker, 152 Pa. 1. Mr. Lindley, on page 53 of his treatise, says that “ persons who join in the purchase of goods, not for the purpose of selling them again but for the purpose of dividing the goods themselves, are not partners and are not [58] liable to third parties as if they were. Coope v. Eyre is a leading case in support of this proposition. There an agreement was come to that one person should purchase Oil and then divide it amongst himself and others, they paying him their proportion of the price. The oil was bought accordingly and the purchaser becoming bankrupt, the seller sought to make the other parties to the agreement pay for the oil. But it was held that the purchaser purchased as a principal and not as an agent, and, that as there was no community of profit or loss, the persons amongst whom the oil was to be divided could not be made liable as partners or quasi partners.” In our case there was no presumption arising from the fact that W. P. Black and his vendees were tenants in common of the leasehold, that they authorized him to purchase the boiler as their agent. Presumptively he was a principal in the transaction, and the burden was therefore on the plaintiff to show that he was their partner or agent, and not on them to show that he was a principal. Did they hold themselves out to the plaintiff or others as partners ? There is no evidence that they did. No act or declaration of either of the. co-tenants we have mentioned was shown which tended to place them in the position of partners in respect to third persons dealing with him. It is true that Boland, who did some work in drilling the well under an agreement with W. P. Black, testified to a conversation with Glatzau which might have affected the latter, and possibly Black, if he had been served with process, but it is doubtful whether Glatzau was a co-tenant, and if he was his declarations would not affect his co-tenants unless made in their presence or authorized by them. While the facts in this case are not precisely like those in Tupper v. Walker, supra, the principles which control it are the same, and the specifications of error are accordingly sustained. Judgment reversed.