Thompson v. Piot

Opinion by Porter, J., The plaintiff brought this action of assumpsit to recover of the defendants, as partners, for certain building — 308 — materials alleged to have been delivered to them in their partnership business. He recovered a verdict and judgment in the court below and the defendant Fiorella appeals. The first specification of error is founded upon that part of the charge of the court which instructed the jury as to the burden of proof, with regard to the existence of a partnership relation between the defendants, as affecting the liability of the defendant Fiorella. There was no evidence that Fiorella had ordered any of the material in question, nor did the evidence clearly disclose whether he had actually received any of the said material. If Fiorella was to be held liable, it was upon the ground that Piot was authorized to bind him in this transaction. This being the case the burden was upon the plaintiff, in the absence of any rule of court, to produce evidence warranting a finding that the relation between the defendants was such as to authorize one to bind the other with regard to the subject-matter of this contract. The court below, upon this point, has the following rule: “In actions by or against persons charged as partners, it shall not be necessary for the plaintiff, on the trial, to prove the partnership, but the same shall be taken to be admitted as alleged on the record, unless one or more of the defendants, .... by affidavit filed at or before the time of filing his or their plea, shall have denied the existence of the partnership in relation to the subject-matter of the action, and stating, to the best of his or their knowledge and belief, whether there is any such partnership and who are the parties to it.” The affidavit of defense contained the following distinct averment: “This deponent alleges that he never was a copartner of said Frank Piot in any way whatever, concerning the purchase of any goods whatever from the said plaintiff, that neither he nor Frank Piot, as members of a copartnership, ever received or accepted any of the goods and merchandise set forth in the plaintiff’s statement of claim, and further this deponent says that, as an individual, he never received and accepted any goods, wares or — 309 — merchandise from the said Charles J. Thompson in any way concerning the erection and construction of the said building, and he did not receive, individually or otherwise, any of the goods set forth in the plaintiff’s statement of claim.” The learned court instructed the jury that, under the rule of the court, “the denial is not clear that they were not in partnership concerning the purchase of these goods;” and that as the copy of the book account filed with plaintiff’s statement charged the defendants as partners that was prima facie proof of the plaintiff’s case. It is important here to observe that the question is not as to the meaning of the rule of court and does not involve the right of a court to interpret its own rule, which interpretation will not be reversed unless for manifest error) The question is as to the interpretation of this affidavit of defense. We cannot concur in the construction put upon the affidavit of defense by the court below. The rule of court requires that a defendant, sued as a partner, in order to place upon the plaintiff the burden of proving the partnership relation, shall have in his affidavit “denied the existence of the partnership in relation to the subject-matter of the action.” Now the subject-matter of this action was a purchase and sale of goods. The affidavit of defense, above quoted, contains (1) The general allegation that Fiorella never was a copartner of Frank. Piot in any way whatever, concerning the purchase of any goods whatever from the said plaintiff; (2) the’specific averment, that, neither he nor Frank Piot, as members of a copartnership, ever received or accepted any of the goods, wares and merchandise set forth in plaintiff’s statement of claim; (3) the averment, that Fiorella never received or accepted any goods from the plaintiff in any way concerning the erection and construction of a certain building; and (4) that he did not receive, individually or otherwise, any of the goods set forth in the plaintiff’s statement of claim. This was certainly a denial as specific, detailed and absolute as it could be made, that the purchase and sale of the — 310 — goods, “the subject-matter of this action,” was a partnership transaction. The burden was therefore upon the plaintiff to produce eyidence sufficient to warrant a finding of the facts necessary to establish the liability of Fiorella. The first specification of error is sustained. The request of the defendant for binding instructions was properly refused. The affidavit of defense was offered in evidence, and taken in connection with the oral testimony of Fiorella, this appellant, was sufficient to warrant a finding of the following facts. Piot and Fiorella, jointly, had entered into a written contract with one McDevitt to provide all the materials and perform all the work for the excavation, grading, footings, stone and brick masonry, and setting all cut stone, for a stone dwelling and stable, at a place known as Rocky Crest, about one and a half miles from Ardmore Station; for which work and materials McDevitt was to pay them $7,500, in monthly payments, on the tenth of the month as per statement rendered on the first of the month, for the work done during the previous month, less twenty per cent, to be held until the completion of the contract to the satisfaction of the owner. Piot and Fiorella, by arrangement between themselves, agreed that Piot should look after the obtaining of the materials and Fiorella should procure and superintend the labor required to be done under the contract. Piot was to collect from McDevitt the payments falling due in each month for all materials and work furnished up to the first of that month, less the twenty per cent retained by the owner, and with the money so received was to pay for the materials used and labor employed. These arrangements made by the defendants with McDevitt and between themselves although they referred to the erection of but a single building, necessarily involved rather extended operations and many transactions, the purchase of different kinds of material and the employment and supervision of many laborers, skilled and unskilled. The arrangement between Piot and Fiorella was not that Piot should furnish all the mate — 311 — rials and should for the materials be paid a certain sum or a certain part of the total contract price, and that Fiorellai should furnish the labor and for it should receivé a certain sum or certain part or percentage of the contract price. Piot was to look after the obtaining of the materials, but he was not to pay for them, he was to collect' the money from McDevitt and from the money so received was to pay for the materials and the labor as well. The evidence was such as to warrant a finding that the4 undertaking was for the joint profit of Piot and Fiorella, the bills for materials and labor were to be paid out of the money received from McDevitt, and any surplus was to be divided between them. This would not constitute them general partners, so as to give one general authority to bind the other,- but it would establish between them the relation of partnership as to that particular transaction, and would give, them authority to bind each other as to matters within the scope of that transaction: Bradly v. Jennings, 201 Pa. 473. This case is clearly distinguishable from Denithorne v. Hook, 112 Pa. 240, in which a party who, according to the understanding of all the parties to the contract, was to covenant only as a surety for the execution of the contract, in the performance of which he had no other interest, actually signed the contract which made it appear that he was a member of a firm, of which he was not in fact a member: It was held, in the case referred to, that, not being a partner, the signing of the contract was not a holding of himself out as a partner to one who had no knowledge of the existence of the contract at the time the credit was given. This appellant was a party to and had an interest in the contract for the building operation here involved, and it was entirely proper to consider the provisions of that contract in order to determine the relation of the contracting parties to each other. There may have been some question under the evidence as to whether all of the building material for which the plaintiff seeks to recover was delivered to and went into — 312 — the building operation, but the court certainly would not have been warranted in declaring as matter of law that none of the material was so used. The testimony of the appellant clearly admitted that some of the material furnished by this plaintiff -was actually received by him at the building and used in the construction thereof. The second specification of error is dismissed. The judgment is reversed with a new venire.