Fonda v. Burton & Sowles

The opinion of the court was delivered by TYLER, J. Tlie defendants deny that they constituted the Glens Falls Shirt Company, that they were partners, and that they or either of them authorized the purchase of' the lumber described in the plaintiff’s specification, upon their credit or upon the credit of either of them. The referees have found that the lumber was ordered by MacDonald’as agent of the defendants and in their behalf, that it was delivered to the defendants and was used by them in making repairs upon the shirt factory at St. Albans, that the price, about which there is no controversy, was charged to that company, and that the plaintiff understood that he was giving credit to the defendants. They have found that the defendants, after Feb. 15, 1881, were partners in everything connected with their interest in the sliirt manufacturing business, and that the lumber was furnished to them as such partners. These findings, provided they are based upon legal evidence, are conclusive of the defendants’ liability. The oral evidence admitted was competent to establish these facts unless it was subject to the objection that it changed the terms of certain written contracts made between the defendants and Foster on the one side and MacDonald on the other, by which the former parties were to establish the latter in business at St. Albans under the name of the Glens Falls Shirt Company. The oral evidence tended to show and from it the referees found that the plan contemplated by the contract, by which MacDonald was to be the Company, was subsequently changed, and that the defendants assumed the management of the business and virtually became the Company themselves. ' The plaintiff was not a party to the written agreements, and, evidence offered by him tending to show who in fact constituted the Company when the lumber was delivered, was clearly admissible. The written agreements were conclusive upon no one but the parties to them. Wait v. Wait, 28 Vt. 350 ; Morse v. Huntington, 40 Vt. 488. [361] Tlie defendants’ counsel moved the court below to re-commit the report to tlie referees with directions to them to state the evidence upon which they found that the defendants were partners prior to June 30,1881, and to make the testimony a part of the report. The court re-committed the report but the order of re-committal was not that the entire testimony bearing upon this subject should be stated, 'but that tlie referees should state whether tlie evidence which tliey had already set forth in their report was the substance of all the evidence bearing upon that point, and if not, to give the substance of all other evidence relating to the partnership. The referees say in their supplemental report that the facts stated in tlie original were the substance of a great mass of evidence that was received by them without objection. It is fairly to be inferred from this that in their first report they stated tlie substance of all the evidence; at all events, the supplemental report seems to have been satisfactory to the court and to have been treated by it as made in compliance with its order. The record does not show that a request was made by the defendants’ counsel to have the report again re-comniitted or that they made objection to its acceptance. As there was some evidence tending to establish the fact of co-partnership between tlie defendants, the finding of the referees on that subject is not revisable in this court. Tlie doctrine of estoppel has no application in this case. The subscription paper recites that MacDonald was engaged in the business of manufacturing shirts at Glens Falls, under tlie name of the Glens Falls Shirt Company, and that he was to remove the business to St. Albans and carry it on under the same name in the Tremont House, which ivas to be purchased for that purpose with the money subscribed. The fact that the plaintiff signed the subscription paper in which MacDonald "is called the company did not bar him from showing that afterwards other persons became that' company and that he sold and delivered goods to them. The fact that the chattel mortgage was given by [362] MacDonald to the plaintiff was evidence for th,e referees to consider in determining whether or not the defendants were liable for the price of the lumber. The fact being found that the credit was originally given to them and that they assumed and were obligated to pay the debt, the only question arising upon the mortgage was whether it operated to release the defendants from their liability. From the testimony of both the parties to the mortgage, received without objection, the referees were justified in finding that it was not given for the purpose of affecting the defendants’ liability, but for a different purpose. At the inception of this enterprise the defendants were the owners of the Tremont House property which was called of the value of $10,000. The defendants were treated as - contributing $4,000 and the subscribers $G,000. It was provided in the subscription paper that, on the failure of MacDonald to carry out his part of the contract, Foster, the trustee, should re-convey four-tenths of the property to the defendants and six-tenths to the subscribers. The subscriptions therefore belonged to the defendants in payment of the $6,000 interest in the property which the subscribers acquired. This sum the defendants were to have whether the enterprise succeeded or not. The referees have not found that the enterprise failed of success through the defendants’ fault or mismanagement; on the contrary, they express the opinion that the plaintiff’s $100 subscription should be applied in part payment of his account. It is apparent from the facts that are reported that the defendants found it necessary to change the plan first contemplated for conducting the business in consequence of the changed condition of MacDonald’s affairs or his lack of business efficiency. The case discloses nothing that dis-entitles the defendants to receive the $100 which the plaintiff subscribed. Judgment reversed, and judgment on the report for the plaintiff to recover $82j.7S, and interest.