Butler v. Merrick

Wall, J. The appellant was sued as surviving partner of Speed Butler, deceased. She denied by the proper pleading all liability as such partner, and thus presented the only issue of fact in controversy. It was not disputed that the plaintiff below had a valid claim against Speed Butler and against appellant also, if, upon the facts, appellant could properly be treated as a partner. Speed Butler had opened a coal mine upon a tract of land which seems to have belonged to his minor children. In doing so he became indebted to the appellant, his sister, in the sum of $13,000, and to secure her the following paper was executed: “ This agreement entered into this-day of May, A. D. 1881, between Speed Butler, as trustee of Anna S. Butler, Jennie E. Butler and Arnold W. Butler, of the County of Sangamon and State of Illinois, the party of the first part, and Salome E. Butler, trustee, of the same place, the party of the second part. “ Witnesseth, that the party of the first part hereby sells to the party of the second part, in consideration of the sum of thirteen thousand dollars, and the agreements of the party of the second part hereinafter mentioned, the one-fourth (J) interest in the coal mine known as the Black Diamond Mines situated on the southeast quarter (J) of section 4, township 15 north, range 5, west 3d P. M., in the County of Sangamon, State of Illinois, under the conditions following: “First. One-quarter of one cent on each bushel of coal, to be deducted and paid to Speed Butler at the end of every month on all coal hoisted and sold in said month, as royalty, and this amount as royalty to be paid before anything else is paid from the proceeds of said mine. “Second. Speed Butler to have entire management and control of all matters in connection with said mine. “ Third. 'A full and satisfactory settlement to be made at the end of each month, and whatever losses or gains of that month to be divided, one-quarter of such gains or losses to belong to Salome E. Butler and the remainder to belong to Speed Butler. “Fourth. All coal to be taken from under the land belonging to the heirs of said Speed Butler, and no coal to he taken out of said coal shaft from any other source, without the full consent and approval of said Speed Butler. “Fifth. In case of the death of said Speed Butler, his executors, administrators or trustees to have the same authority as he himself now has in the premises. “Sixth. If at any time this quarter interest now sold in said mine is to be resold, Speed Butler is to have the right to be first purchaser, if he so desires, at whatever price may be offered by any other bona fide purchaser, and this quarter interest can not be resold to any party that may be objectionable to said Speed Butler. “ Seventh. If at any time it should be considered by the parties advisable to connect “ tile works” with said mine, the expense of so doing will be in the same proportion as one to three, and the profits or losses therefrom will likewise be in the same proportion. “ In witness whereof the parties have hereunto set their hands and seals the day and year first above written. “ Speed Butler, [seal] “ Salome E. Butler.” [seal] “ The party of the first part hereby agrees to watch over and protect this interest in the same manner as though it belonged to himself. 61 Speed Butler.” The appellant testified that she did not read the paper, and only signed it because her brother told her to do so; that she did not know its contents and supposed it merely gave her security upon the property. It was never in her possession. She had no idea there was anything in it creating a partnership or any other liability on her part, and though she subsequently advanced §5,000 more to her brother, she never received anything from him in the way of a statement, or otherwise, to indicate such a relation. Her name did not appear on the books of the concern, which was conducted under the style of Speed Butler & Co., nor" was there anything in the accounts to show that she was in any wise connected with the business. She was never consulted about the management of it, was never at the mine but once, and the only transaction she had there was in the purchase of some coal for her own use. Speed Butler died in April, 1885, and appears to have been considerably in debt on account of his mining operations. Then for the first time appellant heard the claim made that she was liable as a partner. It is not proved that she ever said or did anything from which a partnership can be inferred, aside from the execution of the paper above quoted. This paper was spread upon the records of Sangamon County, June 13, 1881. The effect of so recording it need not be considered in the present case, for the reason that it does not appear the appellee ever knew of the existence of the paper or that it had been so recorded. As between the appellant and Speed Butler there was no partnership, for the reason that the minds of the parties never met on that proposition. It is not at all probable that Speed Butler ever considered a partnership was thereby or otherwise created, and it is certain that she never so understood it. The mere signing of this paper, not knowing or misapprehending its contents, would not make her a partner as between her and her brother. If the paper is such as to constitute a partnership according to the legal effect of its terms, and if a third person, relying in good faith upon the information derived from it, is induced to furnish goods or give credit upon the belief that the persons executing it are bound as partners, then a different question will arise. So far as this record discloses, the parties were not, as between themselves, partners, nor has the appellant done or said anything, on which appellee may or does rely to incur such a responsibility. Upon the undisputed facts in proof we have no hesitation in holding there was no partnership. We deem it unnecessary to discuss the provisions of the instrument in question. It is assumed by counsel for appellee that a participation in profits such as here stipulated for will constitute a partnership. Such may be a presumption, but it is not conclusive, prevailing in the absence of controlling circumstauces, and subject to be so controlled. If, upon an inspection of the whole instrument, it can not be inferred reasonably that a partnership was designed, then none would be inferred from this single provision, Niehoff v. Dudley, 40 Ill. 406; Story on Partnership, Sec. 38; Bowen v. Rutherford, 60 Ill. 41. The judgment will be reversed and the cause remanded. Reversed and remanded.