Cottrill v. Vanduzen

The opinion of the court was delivered by Poland, J. The auditor reports, that, from all the evidence in the case, he was unable to find, that the defendants were really partners between themselves, but does find, that they so conducted and held thémseves out to the plaintiff, that he was justified in dealing with and giving credit to them as such. No doctrine is more familiar, or better settled, than that, when persons hold themselves out to the world as partners, and conduct as such, persons dealing with them have a right to give credit to them and hold them responsible as partners, though there may be no partnership in fact. Stearns v. Haven et al., 14 Vt. 540. In the present case the defendants do not deny, but that the evidence before the auditor was sufficient to show a liability against Abraham and O. P. Vanduzen, but they insist, that the auditor erred in finding H. G. Vanduzen liable. The only question for us to determine upon this report is, whether there appears to have been any evidence given before the auditor, which legally tended to show a liability against II. G. Vanduzen; for if there were, the sufficiency, or insufficiency, of the evidence to prove the fact was a matter resting wholly in the discretion and judgment of the auditor, and his decision of any question offact upon the evidence is as final and conclusive, as the finding of facts by a court, or jury. Does the auditor’s report show any evidence, having a legal tendency to show, that H. G. Vanduzen held himself out to the world as a partner, or jointly interested, in the stage business, out of which the plaintiff’s account accrued ? We think such evidence appears on the report. In the first place the defendant H. G. Vanduzen was to some extent, at least, actually engaged in the stage business himself, and, during the time the plaintiff’s account was accruing, actually drove the stage a portion of the time to and from the plaintiff’s house in [515] Montpelier to Warren. In the second place, it appears from the report, that he bought and otherwise furnished, himself, some portion of the keeping for the horses, that were used in the stage business. These acts of H. G. Vanduzen were clearly evidence tending to show, that he was a partner, or joint owner, and the performance of them must necessarily tend to induce a belief of the existence of such an interest in him; — how conclusive they would be would depend much upon the situation of the parties and other surrounding circumstances, to be judged of by the auditor. In the third place, the letters of H. G. Vanduzen to . the plaintiff not only have a tendency to show a joint interest and liability upon the writer of them, but they must be regarded, as we think, as testimony of a very conclusive character. The language is entirely inconsistent with the notion, that the writer had no interest in the payment of the money to the plaintiff, but wrote merely by the request and procurement of some other person, who had the sole interest. The testimony of the defendant H. G. Vanduzen, that the letters were really written by him as the agent of his brother O. P. Vanduzen, would not at all alter the impression the letters would give the plaintiff, nor his right to act upon the language contained in them. It seems, then, clear, that there was evidence before the auditor tending to show such facts, as the auditor has found, and if so, we cannot disturb his decision upon the facts. In relation to the defendants’ objection to the admissions of O. P. Vanduzen, it is only necessary to say, that they were admissible for the purpose of establishing his liability, (though not to charge the other defendants,) and it does not appear, from the report, that the auditor gave any weight to such admissions, except against the party making them. The judgment of the county court is affirmed.