ground, and thus avoid the unwelcome task of investigating the grave charges of fraud and simulation, in proof of which he cited, in his reasons for judgment, numerous and striking evidences. 3. The only remaining duty there is to perform is to adjust the accounts of the defendants and garnishees, and strike a balance, and ascertain what plaintiffs are entitled to receive, if anything. The following is the statement of the judge a quo, viz.: Kehlor Bros., Dr., to John T. Milliken. 97,613.37 bushels corn, at 56 cents, 16,737.38-56 bushels corn, at 68 cents, Less 12 cents profit on 2,386.19-56 bushels short on contracts, being difference between 56 and 68 cts., Gross amount to debt of Kehlor Bros., From which amounts are to be deducted the following cred- Feby. 1. Cash paid draft against B. L. barge North, Feby. 19. Cash paid draft against B. L. Crescent City and Smith, Feby. 19. Cash paid John T. Milliken, Feby. 28. Cash Lawrence, Cash paid transfer on 111,245.16-56 bushels corn Cash paid freight bill steamer Raven and barges, Cash paid Henry Seeley's expenses, Inspection corn barge Smith, Inspection corn barge North, $54,763 95 11,374 82 $66,138 77 286 32 $65,852 45 $ 9,789 85 26,703 00 16,755 50 1,000 00 25 00 556 22 6,087 98 249 23 28 85 21 78 Inspection corn barge Crescent City, 28.94 13 38 We will notice a few of the objections that are urged by the garnishees' counsel against this statement of accounts: 1. Complaint is made of the garnishees' debit of $54,763.95, as the proceeds of 97,613 37-56 bushels of corn, on the ground that it incorrectly includes, as a part of defendant's delivery, the 3,096 bushels of corn which were short in the cargo of the barge North, and which he did not make good until the 21st of March following. There is a balance resulting of $52,929.68. From this there is deducted a profit of $286.32, leaving as true balance the sum of $52, 643.36. This is incorrect. There is no credit given defendant for the proceeds of the 3,096 bushels of corn he paid for, and the defendant is debited in the judge's statement with the profit claimed, $286.32. Make these alterations, and the original debit is re-established. 2. It is contended that the judge a quo incorrectly allowed Milliken 68 cents for the 16,737 38-56 bushels of corn which were taken possession of by the garnishees, and that it should have been valued at 56 cents. We have already ascertained that this lot of corn was not accepted or delivered under the defendant's contract; hence the contract price does not control. We think the district judge correctly fixed its value at the market price, according to the precedents mentioned in his opinion. 3. It is assigned as an error on the lower judge's ruling that he disallowed a credit of $1,438.50 for moneys alleged to have been paid by garnishees' agent to one Pretorious, a representative of the defendant in his negotiations for and purchase of corn in Kentucky and Illinois. This claim is made on a draft drawn by the defendant on Suley and in favor of Pretorious for one cent per bushel on all corn he shall pay for. Suley claims to have accepted this draft wholly, and to have paid it subsequently to Pretorious in installments. Milliken countermanded payment, and Suley disregarded the notification, and claims to have paid it on the faith of his verbal acceptance. There is no pretense that this alleged draft has been negotiated to any one. It remained in the hands of Pretorious until payment was made. Milliken had a clear right to dishonor his draft, and, so long as no third party has acquired any right in it, his command to the drawer was binding and absolute, because it was out of his funds that payment was to be made. If Suley paid after the receipt of Milliken's notice not to pay, he paid at his peril. These are the only objections that are seriously urged. We cannot more appropriately conclude this opinion than by quoting a part of the concluding sentence of the brief of the garnishees' counsel, as follows, viz.: "The opinion of the lower court seems to have been based almost entirely upon the alleged fact that Kehlor Bros. at the end of February admitted to Gomilla's agent in St. Louis that they were indebted to John T. Milliken under the first two contracts in an amount of $4,000. Mr. Kehlor, in his testimony, explains that this alleged admission consisted simply in the making of a pencil calculation showing the amount which Kehlor would owe to John T. Milliken upon the completion of those two contracts; but, whatever the exact words of the admission may have been, there is no question that Kehlor Bros. would have become indebted to Milliken in an amount approximating $4,000 if Milliken had fulfilled his two first contracts in the manner intended." It has been satisfactorily established that Milliken did so fulfill those contracts, and that the judgment appealed from is correct. Judgment affirmed. GREEND et al. v. KUMMEL, (CRAFT, Warrantor.) (Supreme Court of Louisiana. January 7, 1889.) 1. PARTNERSHIP-WHAT CONSTITUTES PARTNER. The fact of a party advancing money to pay the wages of the employes of a commercial partnership, and discharging its other expenses, does not constitute him a partner.i 2. SAME-FIRM PROPERTY. The fact that the person who makes such advances of money takes the charge and superintendence of the partnership business, and exercises the rights of a proprietor does not constitute him the owner of the establishment and property, as between himself and the partners. 1 Concerning the general subject of what constitutes a partnership, see Klosterman v. Hayes, (Or.) 20 Pac. Rep. 426, and note: Runnels v. Moffat, (Mich.) 41 N. W. Rep. 224, and note; Railway Co. v. Johnson, (Tex.) 7 S. W. Rep. 838, and note. 3. ESTOPPEL. Such acts might be placed as an estoppel against the parties in a suit with a third person. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; TISSOT, Judge. Action by O. V. Greend and Herman Wehrman against Charles Kummel and Augustus Craft, warrantor. Defendant and warrantor appeal. T. Gilmore & Sons, for appellant. Bemiss & Simonds, for warrantor. A. Bernan, for appellee. WATKINS, J. The litigated question in this case is whether or not a partnership exists between the two plaintiffs and defendant. The claim of the plaintiffs is that during the fall of 1886 they formed a partnership, for the purpose of lithographing and publishing music, in the city of New Orleans. That for many years previous thereto Wehrman had been engaged in the business in this city, and was at the time of forming said partnership with Greend the owner of $2,500 worth of material, tools, engraving and other paraphernalia, and sufficient machinery to operate the business. All of this, and his professional skill, he invested in this partnership against Greend's $660, and his skill as a lithographer, engraver, specialist in zinc-etching, and music printing and publishing. Being desirous of enlarging their business, they ordered from Leeds, England, a lithographic power-press, the prime cost of which was about $2,300, on which they had advanced $600, leaving $1,700 due thereon. Not being in funds to pay this balance and the expenses necessary to carry it into their establishment, they secured a loan from Augustus Craft for that purpose; and for this sum Wehrman executed his three months' note, secured by a pledge of all the effects then in the establishment, and the press not yet received. That, Henry Baker having just concluded negotiations with them to take an interest in the partnership, Craft purchased Baker's right, through Wehrman, and took his place, and thereafter, from time to time, he invested $3,000 additional money in the business. That before Baker became a member of the firm it was conducted in the firm name of Wehrman & Co., but when Craft became a partner it was changed to "Standard Music & Photo-Litho Company." That on the 1st of April, 1887, he sold his right, title, and interest in the partnership and property to the defendant, who continued in the business with petitioners, and invested additional capital, he being possessed of large means, and no knowledge of lithographic business. They aver that on the 28th October, 1887, during the absence of Greend, the defendant violently ejected Wehrman from the premises, and locked it, and has prevented their re-entry since. Kummel denies the existence of a partnership, but avers that upon the plaintiffs' representations that the business was a profitable one, and would prove to be a good investment, he purchased from Craft, on the 1st of April, 1887, for the price of $4.973.30, “a certain lot of machinery, tools, stones, and other articles necessary and useful for the purpose of carrying on the lithographic business," in the premises, No. 48 Bienville street. He further avers that he "continued in said business, employing the plaintiffs as workmen and operators in said business, until the 28th of October, 1887, when, it proving unprofitable, he discontinued it." That in the course of said business he expended, in addition to the price he paid Craft, about $5,000. He cites Craft in warranty, to defend the suit. Craft's position is that he was the holder of certain claims against the plaintiffs including Wehrman's note for $1,760, a bill of sale to the effects in their establishment, and, upon being informed by them that they had found a man who would buy out all of his rights and claims, he sold to the defendant, at their request, only such rights as he had. He denies that he was ever a partner of the plaintiffs, has any interest in the suit, or that he is bound in warranty to the defendant. On these issues the parties went to trial, and from a general judgment in favor of the plaintiffs and warrantor, the defendant has appealed. Upon a most careful examination of the record we have found the following facts, viz. The partnership between the plaintiffs was formed in the early part of the fall of 1886, and, with a view of enlarging their business, they obtained a loan from Augustus Craft of $1,750, for which Wehrman executed his note, and secured the same by a pledge of all the property and assets of the partnership and of the lithographic power-press which they contemplated buying, and did buy, with the money they had borrowed from Craft. This transaction took place on the 10th of November, 1886. On the 23d of December following there was a new contract of partnership entered into between the plaintiffs and Henry Baker, wherein it was stipulated that they associated themselves in the lithographing business in this city, for a term of three years, and were to share profits and losses equally. Wehrman delivered as his share of the stock $600 out of certain tools, stones, materials, etc., valued at $2,500, Greend delivered the sum of $600, and Baker agreed to furnish his services, commercial standing, knowledge, and influence, which was fixed at $600, and which he delivered as stock. Owing to the value of the materials, tools, stones, etc., being in excess of his subscribed capital by the sum of $1,900, that sum was placed to his credit on the books of the partnership. Just here the chief contention arises, and that is with regard to the relations which subsisted between this partnership and Craft, from its formation to the 1st of April, 1887, when a transaction occurred between him and the defendant. The two plaintiffs, as witnesses, testify that, soon after or about the time of Baker's becoming a member of the partnership, Craft took his (Baker's) place, and thereafter continued to be a member of the partnership; and, as a conclusive circumstance in support of their theory, they cite Craft's expenditures of various amounts of money for account of the firm, for a piano, a gas-machine, and lithographic stones, etc., and aggregating about $3,000, and without security. On the other hand, Baker states as a witness that he continued in the partnership for about one month, and, becoming dissatisfied with the prospects of the enterprise, and being much occupied with other business engagements, he determined to sell his interest, and withdraw therefrom; and he accordingly sold his interest to Wehrman for $200, for which sum he executed his note. Craft testifies that he never thought of such a thing as becoming the partner of the plaintiffs; that he did not purchase Baker's interest, and never had any interview with him on the subject. He says that it is true that he expended various sums for the plaintiffs' account, at different times, prior to the 1st of April, 1887, and in addition to the sum he loaned them on the 10th of November, 1886, but that it was done because he felt constrained to make these expenditures in order to save the sum first advanced. On this evidence we are bound to conclude that the relations which existed between the plaintiffs and Craft were those of debtor and creditor, and not those of partners. On the 1st of April, 1887, by a notarial act, Craft conveyed to the defendant "a certain lot of machinery, tools, stones, and other articles necessary and used for the purpose of carrying on a lithographic business," being situated in the premises, No. 48 Bienville street, for the consideration of $4,973.30. Of this there was $1000 paid in cash, and for the remainder of $3,793.30 he executed his promissory note, due at 30 days, and same was indorsed by the plaintiffs. It is under this document that plaintiffs insist that the defendant took Craft's place in every respect, and became a member of the partnership, which was styled the "Standard Music & Photo-Litho Company," and so continues to the present time. It is under this instrument that the defendant claims exclusive ownership of all the property of the establishment, and it is in virtue thereof that the defendant calls Craft in warranty. Again, the two plaintiffs swear to the existence of a partnership between themselves and Kummel in the business, as well as in the property. This is just as emphatically denied by the defendant. There is nothing in the act to indicate the purpose of the defendant to become a partner of the plaintiffs. Neither of the plaintiffs were parties to that act. It only purports a conveyance of the rights, title, and interest of Craft to the defendant of certain specified property, and nothing more. In the elaborate testimony of the respective parties and their witnesses various circumstances are enumerated in support of the respective theories of each, without convincing us of the correctness of either. While it is true that under this act the defendant assumed control and general superintendence of the business and establishment, and performed many acts of apparent ownership, we are inclined to view them rather as acts of administration. He had purchased the claims of Craft upon representations of the plaintiffs that the business was sure to be a profitable one, and was a safe investment for his money, and as a pendent financier he was disposed to look after it closely. It is true that he expended a large sum of money in the wages of employes, and in other expenses, and necessary disbursements of the concern, but it appears to us quite reasonable that this should have been anticipated by him, inasmuch as his associates were confessedly without means to move the business. Indeed, it is in proof that the plaintiffs had more than one interview with the defendant on the subject, and induced him to purchase the interest of Craft. Craft testifies that he was not acquainted with Kummel, and was introduced to him in the notary's office on the day of sale. On the other hand, there are several witnesses of first respectability who testify that both Greend and Wehrman acted as proprietors down to the date the establishment was closed; and others testify that they were introduced to the defendant by Greend and Wehrman as their partner, without his disapprobation. These, at least, are but circumstances. They cannot of themselves establish either a partnership inter se, or ownership. If some third person had rights which were involved, they might be successfully urged against the parties as an estoppel; but they cannot take the place of a contract of partnership, or of a sale between the parties. Our conviction is that the defendant was permitted to take the superintendency and principal management of the business because they had confidence in his financial ability, but that they continued to remain the owners of the establishment and property, subject, of course, to the valid claims of the defendant as a creditor. Under this view of the case the judgment of the lower court must be reversed. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the demands of the plaintiffs be rejected, at their costs, in both courts, the rights of all parties being fully reserved. SEGARS v. STATE. (Supreme Court of Alabama. February 11, 1889.) CRIMINAL LAW-TRIAL-EVIDENCE-INSTRUCTIONS. On a trial for carrying a concealed weapon, where the prosecution introduced but one witness, who was impeached by proof of contradictory statements, and the testimony of defendant's witnesses was that he did not have a weapon, a requested instruction that if the testimony of the state consists in the statements of a witness, of the truth of which the jury have a reasonable doubt, they cannot convict, though they may not believe defendant's witnesses, was improperly refused. Appeal from circuit court, Pike County; JOHN P. HUBBARD, Judge. Bowling Segars appeals from a conviction of carrying a concealed weapon. Thos. N. McClellan, Atty Gen., for the State. CLOPTON, J. The defendant was indicted and convicted of carrying a concealed weapon,,-a pistol. Only one witness was introduced and examined by the prosecution, and he was impeached by proof of contradictory statements. |
