Noyes v. Cushman

The opinion of the court was delivered by Iseam, J. The auditors.have reported abalance due the plaintiff, subject to objections which have been taken by the defendants. It is insisted by the defendants, that they were not partners when the services- were rendered by the plaintiff, and that this joint action against them-, as such, cannotbe sustained. We learn from the report, that the grist mill and privilege were at first purchased by the defendants, Cashman and Noyes,, under an agreement to rebuild [396] the same and share equally in its expense; and that afterwards one sixth of the same was purchased of them by the defendant, Morse, .under an agreement to be at a like proportion of the expense of rebuilding and putting the mill in proper condition for improvement and use. These several purchases vested the title and interest in these premises in the defendants, as tenants in common. Their mutual obligation to rebuild and repair does not necessarily constitute them partners, for, as observed by Judge Bronson, in Porter v. McClure, 15 Wend. 192, “they may or may not become partners in carrying on milling business.” A mere community of interest in real or personal estate does not constitute a partnership. But where a purchase of that character is made, and the premises are rebuilt or repaired for the purpose of prosecuting some joint enterprise or adventure, and under an agreement to share in the profits and loss of the undertaking, the contract then becomes one constituting a partnership; and each member thereof is liable as a partner; and they are liable jointly for services performed in perfecting their joint undertaking. The report of the auditors shows this to have been the character of the contract, as made by these defendants. After having obtained a joint interest in the grist mill and privilege, they became obligated to rebuild and repair the same, for the purpose of prosecuting a joint undertaking in the use of this property for milling purposes; and that the defendant, Morse, was to have one sixth of the toll or profits of the mill, and one half of the remainder for taking charge of the same; and that the other defendants, Cushman and Noyes, were to have the remaining shares. In this contract are found all the elements of a partnership even as between themselves, much more as to third persons; and whatever agreement may have been made as between themselves, as to the manner in which other persons were to be employed and paid, it can have no effect upon their liability to those who have rendered services in promoting their joint undertaking, particularly where, as in this case, the services were rendered under the understanding that the defendants were jointly liable therefor, and when the plaintiff was ignorant of any different arrangement as between the defendants. We think, therefore, the auditors came to a right conclusion, that the defendants were liable as partners on this account to the plaintiff. From the facts stated by the auditors, the plaintiff’s account is [397] saved from the operation of the statute of limitations, by the payments which axe passed to the defendants’ credit. The plaintiff was competent to testify to the fact of such payments, and the circumstances attending it, though its effect was to remove the statute bar. The case of Hapgood v. Southgate, 21 Vt. 588, directly disposes of this question. At common law, part payment by one partner will remove the statute bar as against all the partners. The effect of such payment is not taken away by the 26th section of the Compiled Statutes, 381, which provides that the payment shall be effectual for that purpose only as against the party .paying, and not against other joint contractors. This cause of action having accrued before that act took effect, the case is expressly excepted from its operation by the 28th section of the same act. In relation to the admission of the declarations of Amos Noyes, we think, under the circumstances of this case, they were properly received, so far as to charge him as partner, though they could not have been received as evidence against the others. The report not showing that any other effect was given to that testimony, the presumption arises that that was the only effect given to it. The case of Cottrill v. Vanduzen, 22 Vt. 511, is similar to this, and upon the strength of that case we think this objection must be overruled. The result is, that the judgment of the County Courtis affirmed.