Newman v. Bean

Gilchrist, C. J. It is unnecessary to settle the question whether the plaintiffs were partners with Merrill or not. However that may be, the action may be maintained. It appears, from the case of Morrison v. Blodgett, 8 N. H. Rep. 245, that an action may be maintained against any third person who should seize goods on execution, belonging to a partnership for the debt of an individual partner, and exclude the other partners from the possession of them. Page v. Carpenter, 10 N. H. Rep. 81. The interest of a partner is not an interest in the specific articles belonging to the firm, but only an interest in the surplus that may remain after the debts of the firm shall have been paid. When the property of the firm is in the possession of one of the partners, he holds it as a fund out of which the debts are to be paid. His share is not separable from the shares of the others, for he has no separate property in the assets of the firm. Perhaps it may be said, in the first instance, that in such case he holds the property rather in the character of a trustee for the firm, than in that of an owner. He cannot recover any specific ■portion of the property, for he owns none. If .the property ■should be taken from his possession, why should he not recover the entire value ? He would hold the proceeds of the property [99] as he held the property itself. Such seems to be the substance of the law on this matter, as it is stated in the cases of Morrison v. Blodgett and Page v. Carpenter, above cited. But there was no partnership existing between the plaintiffs and Merrill. There was no agreement to share the profit and loss. There was merely a mode provided for paying Merrill for his services. There is a clause to that effect in the agreement, in the following words: “ You are to incur no liabilities, as my agent. I am to furnish the capital without interest, and your services are to be remunerated by one half of what you can make, after paying expenses.” This clause places the matter beyond a doubt. Merrill was performing services for the other party, and his remuneration depended on his skill and care as a man of business. That the amount of his compensation was uncertain, and depended on the various contingencies of business, did not alter his position, and did not make him any less an agent. The defendant contends that the correspondence between Newman and Merrill, and between Newman & Co. and Merrill, was inadmissible, inasmuch as it has a tendency to vary the written contract between Newman and Merrill. The case finds that the correspondence and negotiation which led to the contract, the invoices and letters of advice accompanying the transmission of the goods, from Newman, and from Newman & Co. to Merrill, and Merrill’s answers, were introduced by the plaintiffs, for the purpose of showing how the property came into Merrill’s hands from Newman, and that the contract was Iona fide, and that the goods were the property of Newman, and of Newman & Co. The defendant’s position is, that Merrill was holding his own property, by virtue of an arrangement which should give him a plausible pretence for representing it as the property of the plaintiffs. The details of the correspondence are not stated in the case ; but it is to be inferred that they had a tendency to establish the positions assumed by the plaintiffs. The principles which govern the admission of evidence as a part of the res gestae, are well settled. It must be “ calculated to unfold the nature and quality of the facts it is intended to explain.” It should be so connected with [100] the principal act, as to be regarded as the result and consequence of the existing motives. Mahurin v. Bellows, 14 N. H. Rep. 210. If the correspondence tended to show, as we have a right to suppose it did, that the contract was made in good faith, and that the goods were the property of the plaintiffs, and the manner in which they came into the hands of Merrill, it was competent evidence, because it accompanied the transmission of the goods, and threw light upon the main question in the case, that of property. The testimony of Merrill, throughout, tends to prove that he had no property in the goods. The case finds that in May following the execution of the contract, he represented to Newman that it would be a great convenience if he could get credit on Newman’s account, in certain cases; that Newman assented to this, and that he had accordingly got credit on Newman’s account, in some cases of mutual accounts and purchases of articles necessary to carry on the business. This is all very intelligible, and very far from proving the existence of a partnership. Judgment on the verdict.