Swannell v. Byers

Mb. Pbesiding Justice Smith delivered the opinion of the court. The record shows that at the trial, on motion of plaintiff’s attorney, all papers, pleadings and proceedings were amended by discontinuing the cause as to the defendants H. G. McCulloch and C. H. Briggs. These defendants were not served with process. It is contended by appel-' Iants that entering judgment against them only in a suit against them and other defendants who were not served, is error. This practice has been held to be proper under section 9 of the Practice Act, Sherburne v. Hyde, 185 Ill. 580. It appeared from the evidence that one Lausten was interested with appellants in the project of operating the mine. Appellants, however, cannot here raise the question of non-joinder of Lausten. That fact could only have been set up by appellants by a plea in abatement filed before pleas in bar were filed. Puschel v. Hoover, 16 Ill. 340; Gilmore v. Nowland, 26 Ill. 201. That question was waived by appellants. It is contended on behalf of appellants that there is no proof in the case showing a partnership liability. It appears from the evidence that in the year 1899 appellants agreed to and did advance money for the acquisition of a lease or leases on the Beatrice Mine in British Columbia, for the purchase of ore at this mine, for the construction of a trail over which to carry the ore to a smelter, and for marketing the ore. The evidence shows that this was a preliminary*- undertaking to investigate and determine the value of the mine with a view to its ultimate purchase and operation by them. Appellants admit that they furnished the money for the above objects, but claim that the money was advanced as a mere loan to McCulloch. But no rate of interest was agreed upon, or time for its repayment. Ho obligation or security for the repayment of the money was taken. McCulloch was financially irresponsible. The money was not paid over to him. Briggs was the trustee and trusted agent of appellants in the enterprise and handled the money and had the management of the business for appellants. He was authorized to do what he considered necessary in operating the mine for the purposes stated. Briggs, and McCulloch under his directions, purchased the goods shipped by appellee to the mine. The reasonable conclusion from this state of facts is that appellants did not loan the money to McCulloch, but that they engaged in the enterprise as copartners and must be treated as such as to third persons, at least, and if so, they are liable for the goods purchased by Briggs as their trustee or agent in conducting the business which was put in his charge by appellants. Appellants testified that they appointed Briggs as their trustee and sent him to British Columbia and furnished him with large sums of money to be used in developing the Beatrice Mine. His agency was therefore established by testimony competent for that purpose. This being established,conversations between him and the plaintiff in regard to supplying him with goods was competent, and the objections to the plaintiff’s evidence were properly overruled by the court. Error is assigned upon the giving of each of the three instructions given at the request of the plaintiff, upon the ground that they abandon plaintiff’s theory of a copartnership, as alleged in the declaration, and attempt to found a verdict and judgment on the theory of an agency; and further that the third instruction assumes without proof that Briggs acted as agent of appellants in buying goods for their benefit. The instructions were as follows: “You are instructed that if a person knowingly and voluntarily permits another to hold himself out to the world as his agent he will be held to adopt his acts and be bound as principal to the person who gives credit to the one acting as such agent. “ The court instructs the jury that to constitute a partnership as to the partners themselves it is only necessary that each of them contribute either capital, labor, credit or skill and care or two or more of these, and that all the contri-, butions are put together into a common stock or common enterprise to be used for the purpose of carrying on business for the common, benefit. “The jury are instructed that if you believe from the evidence that in the winter of 1899-1900 the defendants knew that O. PL Briggs was acting as their agent, and was buying stocks of goods in their name and operating the Beatrice Mine in their name and for their benefit, and that they voluntarily permitted him to do so; and if you further believe from the evidence that the said 0. PL Briggs was so acting and made the contract alleged in plaintiff’s deelaration, then the defendants would be bound thereby, whether the said Briggs was in fact their agent at the time or not.” We think there is evidence in the case upon which to base these instructions. The propositions of law stated in them are applicable to the facts as proved and are substantially' correct. The record contains no reversible error and the judgment is affirmed. Affirmed.