Heise v. Barth

Miller, J., delivered the opinion of the Court. The only question of any importance in this case is, were the appellant and appellee partners inter sese in the business of conducting, managing and superintending the affairs and operations of the Brewing Company of which they had been appointed managers? As such managers they had charge of all the company’s property, and the entire control and general superintendence of all its affairs, including the purchase of whatever was necessary to carry [266] on its business of brewing, paying its debts and collecting all moneys due it from the sale of.beer and other merchandise. For these services the company agreed to pay them five per cent, on all sales of beer or other articles, which-by an arrangement between them was to be divided in the proportion of three.per cent, to the appellant, and two per cent, to the appellee. This is not a case in which the parties held a mere formal office in which no partnership can exist. Though as to the company they were its managers or mere agents, there Was no difficulty in their becoming partners in the business of the management or agency itself: quoad hoc, it is as much a business or trade as the employment of a factor or broker or attorney, in relation to which it is conceded a partnership may exist. This’ point was not seriously controverted in argument, but as there were no written articles or express parol contract of partnership, and it is to be inferred from the acts of the parties, it is insisted there must be stronger proof to authorize a Court to imply a partnership inter sese than to establish one as to third parties. On this subject our own decisions have settled the rule by'which we must be guided. There is no doubt of the correctness of the position that parties may be adjudged partners as to third persons when they are not so in fact, inter sese. The views of Chancellor Kent, that “ there is a just and marked distinction between partnerships as" respects the public, and partnerships as respects the parties, and a person may be held liable as a partner to third persons although the agreement does not create a partnership between the parties themselves—actual intention is requisite to constitute a partnership inter sese,” have been adopted by this Court in Kerr vs. Potter, 6 Gill, 423. And in Bull vs. Schuberth, 2 Md., 55, the Court says, “the fact of the existence or non-existence of a partnership as between the partners themselves must be gathered from the intention, of the parties, and the [267] Court in arriving at the intention must form their conclusions from deductions drawn by analogy from principles of law applied to the facts and circumstances developed in the case.” Following and applying that rule in this case we have no difficulty in adjudging a partnership between these parties. As we have already said the business or employment in which they were engaged, was one in which a partnership may exist, and the law does not require in any case, that a partnership shall be evidenced by writing or be proved by an express parol agreement to that effect, but it may be inferred from the acts and conduct of the parties. If from these intent to form a partnership appears, it is sufficient. From the admissions in the answer and the proof in the record, it is in our judgment clear these parties by a voluntary contract put into this business in common, their labor, skill and credit in order that there should be a communion of profits arising therefrom between them. They were to receive a definite per centage on the gross sales, but the amount of such sales and the consequent profits depended on the skill, energy and credit which they might have in common and apply to the business. They were appointed to this management because they were possessed of the requisite business capacity, means and credit. When they took charge of its affairs the company was embarrassed and insolvent. Under their management it was relieved and became prosperous. One of them attended more particularly to the out-door business of buying, selling and collecting, the other kept the books, conducted the correspondence, received and paid out the money and attended to the financial operations. The business was large and extensive. They made purchases to very large amounts in the name of Barth & Heise, paid bills rendered to them in that firm name, and gave their joint and several notes signed in their individual names to raise money, and to pay par [268] ties from whom they made purchases. By this they made themselves equally liable for all debts contracted in carrying on the business. It is true they were secured by a bond of conveyance of the company’s property, and the individual security of its directors, but if these had failed all losses would have fallen upon them. They contracted in their own names, and as a firm, and those with whom they dealt trusted solely to their responsibility. They were, .therefore, not only primarily and solely responsible to those with whom they contracted these debts, but were ultimately equally responsible for all losses. These facts are in our opinion abundantly sufficient, when the well settled principles of law are applied to them, to warrant the Court in determining that a partnership in this business existed between these parties. We do not deem it necessary to refer to authorities in support of this conclusion. It is equally clear to our minds that this partnership continued until the 22nd of October, 1870, when the appellee ceased to be a manager of the company. It was not dissolved or terminated by the fact that the appellee left Baltimore on the 29th of June, 1870, on a trip to Europe, and did not return until the 1st of October of that year. The special agreement to that effect, sworn to by the appellant, as having been made at the time the appellee left, is explicitly denied in the testimony of the latter, and is not supported by the facts or circumstances of the case. On the contrary, notes for purchases to a large amount had been given by the appellee, jointly with the appellant, just prior to this period. These notes were running and his liability on them continued during the whole, or a greater part of the time of his absence. The bill claims the appellee’s proportion of the five per cent, on sales between the 29th of June, and the 22nd of October, 1870. The proof shows without contradiction, during, this period there were sales to the amount of [269] $54,548.46, and that all the notes of the parties had been paid at the time the hill was filed. The appellee was therefore entitled to two per cent, on that sum. To make this simple calculation it was not necessary to refer the case to the auditor for an account. The sum was very properly fixed hy the decree without an account. (Decided 4th June, 1874.) Decree affirmed, and cause remanded.