Rowland v. Long

Robinson, J. delivered the opinion of the Court. This suit was brought to recover from the appellant, the contract price of a horse, sold by the appellee, plaintiff below, to one Zeigler, as the agent or partner of the appellant. The first question for us to decide is, whether the declarations of Zeigler, made at the time of the sale and purchase, were admissible in evidence to bind the appellant? Such declarations, it is clear, were not binding upon the appellant, unless Zeigler was at the time his agent, and [444] acting within the scope of his authority; nor were they admissible in evidence, unless there was proof from which the agency could be inferred. Without reviewing the several cases in -which this question has been considered by this Court, it is sufficient to say, that the declarations of a person professing to -act as the agent of another, are not per se admissible in evidence to bind the principal; and in order to make them so, there must be proof aliunde, from which the agency may be inferred. If the proof in this respect be so slight and inconclusive, as not to justify a jury, in the exercise of a reasonable intelligence, to infer the agency, such declarations are inadmissible; on the other hand, if it be legally sufficient to warrant the jury in finding that the party making the declarations was the agent, then they ought to be admitted. It is not easy to lay down a more certain and definite rule. In all cases however, the admissibility of the declarations is a preliminary question for the Court, but agency vel non, is a question for the jury. Henderson vs. Mayhew, 2 Gill, 409; Morrison vs. Whiteside, 17 Md., 459; York County Bank vs. Stein, 24 Md., 465 ; Thomas vs. Sternheimer, 29 Md., 271; Natl. Mechanics’ Bank of Balt. vs. Natl. Bank of Balt., 36 Md., 20. The inquiry then on this branch of the case resolves itself into this, was the proof offered by the appellee sufficient to justify the inference that Zeigler was the agent of the appellant at the time such declarations were made? Now the evidence shows, that prior to the purchase of the plaintiff’s horse, Zeigler had purchased horses of other persons as the agent of the appellant, and that these purchases had been ratified and adopted by the appellant; and that these facts were known to the appellee. In addition to this, when the appellee called upon the appellant for the payment of the purchase money, the latter told him not to be uneasy about the money, that it should be paid, — that [445] Zeigler ought to have paid it; and further said, that they had lost money on the purchase of horses. Here then was proof, not only of the adoption and ratification by the appellant of the acts of Zeigler, hut in addition thereto, the pregnant fact, that when the purchase money was demanded of him by the appellee, there was no denial of Zeigler’s agency or authority, — on the contrary, there was an implied admission that the horse had been purchased by the authority of the appellant. This evidence was sufficient, in our opinion, to warrant the jury in finding the agency of Zeigler; and if so, the declarations made by him at the time of the purchase were admissible in evidence. To rebut the proof thus offered by the appellee, the appellant testified, that he had employed Zeigler to purchase horses, and that, by the terms of their agreement, the appellant was to furnish the money and pay for the horses and cattle, and that Zeigler was to make the purchases and bring the horses in, and that in consideration of such services the appellant was to give him a part of the profits. The appellant further said, he was to bear all the losses, and he did not consider it a partnership. Upon the evidence thus offered, the Court instructed the jury, “that if they believed from the evidence, that prior to the sale and purchase of the horse, the price of which is sued for in this action, a partnership existed between Henry Rowland and John F. Zeigler for the purchase of horses, and that no notice of the dissolution of said partnership was given to the public, by publication or otherwise, or that the plaintiff had not notice in some other way of such dissolution, and the plaintiff sold to John F. Zeigler, as the partner of said Henry Rowland, the horse, for the price of which this suit is instituted, without any knowledge of said dissolution, if there was a dissolution, [446] but relied on tbe responsibility of said Rowland, then tbe plaintiff is entitled to recover." We see no objection to tbis prayer. Whatever conflict there may be in the decided cases as to what are the elements necessary to constitute a partnership, and however difficult it may be to lay down definite rules as applicable to all cases, it is well settled, we think, that where two persons agree to carry on a trade or business for their mutual benefit, one to furnish the money and the other to perform certain labor and services, and each to share the .profits to he derived from such trade or business, they become liable as partners to third persons, although in fact no partnership was contemplated by the parties themselves. In such a case, each party has an interest or property in the profits as profits, and is entitled to an account for the same. Waugh vs. Carver, 2 Hy. Black., 235; Smith’s Leading Cases, vol. 1, part 2, and note, 1175 ; Smith vs. Watson, 2 B. & C., 407; Ex parte Rowlandson, 1 Rose, 91; Green vs. Beesley, 2 Bing. N. C., 110; Ex parte Langdale, 18 Vesey, 300; Hazard vs. Hazard, 1 Story, 371. Here the appellant was to furnish the money, and Zeigler was to purchase the horses, and the profits to be realized from the purchases and sales were to be divided between them. Tbe exact proportion of the profits to which each was entitled does not appear from the evidence, but that is quite immaterial. Now, under such an agreement as this, it is clear from all the authorities, that they became liable as partners to third parties, although in fact they may not have intended to form a partnership. The defendant’s prayer was properly rejected by the Court. It entirely ignored the liability of the appellant if the jury should find that there existed a partnership between him and Zeigler. It was also objectionable, because from its language the jury might infer they were bound to find that Zeigler had special authority to purchase the horse sued for. [447] (Decided 15th December, 1876.) The modification of the prayer hy the Court, presented the law correctly to the jury. Finding no error in the rulings below, the judgment will he affirmed. Judgment affirmed,