June Term, 1876.
Partnership — Contract.
Where one member of a firm buys goods for the firm on his own credit, without disclosing the fact that he is a member of the firm, which goods are received and used by the firm: Held, that the firm is liable to the vendor for the price of the goods.
APPEAL from Moore, J., at Spring Term, 1876, of EDGECOMBE.
This action was brought to recover the price of a turbine water wheel and fixtures, the transaction in regard to the purchase of which will appear in the following letter:
PETERSBURG, VA., 3 July, 1873.
Messrs. Poole Hunt, Baltimore, Md.:
GENTS: — Please ship to Plummer, Lewis Co., Tarboro, N.C. one Leffel turbine water wheel, 20 inch. You will please send to us here the coupling that connects the water wheel to the shaft, that we may have the gearing here fitted to it. We enclose directions about manufacture of buckets, which you will please observe. Make bill of all to us and give us your best price.
Yours very truly, PLUMMER, YOUNG Co.
The firm of Plummer, Young Co., and the defendant were both members of the firm of Plummer, Lewis Co.
It was admitted on the trial that Plummer, Lewis Co. received the goods 18 August, 1873, and that their value was $536.50, and that if they were liable to plaintiffs they were entitled to judgment for that sum.
(421) Defendant contended that the articles were purchased by Plummer, Lewis Co. from Plummer, Young Co., who bought them from plaintiffs on their own exclusive credit. Defendant denied that Plummer, Lewis Co. purchased from plaintiffs, or that plaintiffs gave credit to them. Defendant also alleged that Plummer, Young Co. purchased the goods at a discount of 10 per cent and sold to Plummer, Lewis Co. at a net advance of 2 1/2 per cent, and that defendant had paid Plummer, Young Co. in full.
On the trial counsel for plaintiffs, after reading complaint, to which correspondence was attached as part thereof, insisted that there was no question of fact to go to the jury; and if there was any issue, the only one was, "Did plaintiffs sell the goods to Plummer, Lewis Co.?" Counsel for defendant insisted that the issue to be submitted should be, "Whom did Poole Hunt trust for the goods?" His Honor said the only issue was, "Did plaintiffs give credit to Plummer, Young Co., or Plummer, Lewis Co.?" To this plaintiffs excepted.
Defendant offered in evidence the depositions of W. T. Plummer and N.M. Young, members of the firm of Plummer, Young Co., to which were attached the original invoices made out by plaintiffs and sent to Plummer, Young Co. Counsel for plaintiffs admitted the invoices, but objected to any evidence outside of correspondence and invoices unless brought to the knowledge of plaintiffs. His Honor ruled out the evidence except that part which stated that plaintiffs allowed Plummer, Young Co. 10 per cent discount and that they charged Plummer, Lewis Co. 2% per cent on the net price, and admitted that as evidence tending to show that the goods were purchased on the sole credit of Plummer, Young Co. Plaintiffs excepted. His Honor also permitted defendant to testify that neither Plummer, Lewis Co. nor defendant ever bought any goods from the plaintiffs nor had any dealings with them except his letter, which was considered a mere letter of (422) inquiry; that he settled with Plummer, Young Co. after demand made by plaintiffs of him for payment of the goods because he had given his note and was compelled to pay it to the purchaser of the assignee in bankruptcy of Plummer, Young Co.; that no demand was made on him until after the adjudication in bankruptcy of Plummer, Young Co. Plaintiffs excepted to the evidence. Counsel for plaintiffs insisted: (1) That it was a question of legal construction for the court, without the intervention of the jury. His Honor declined to so consider it, and plaintiffs excepted. (2) That the assent of one partner was the assent of all, and that the question was one depending upon the law of copartnership, as applied to the correspondence and papers by the court. His Honor submitted to the jury the question, "Did the plaintiffs give credit to Plummer, Young Co. or to Plummer, Lewis Co.?" in the following charge: "To make a contract or agreement binding in law requires the concurrence of two minds — the assent of both parties. You have heard the evidence, take the case." Plaintiffs excepted.
The jury returned a verdict that the plaintiffs gave credit to Plummer, Young Co. and not to Plummer, Lewis Co. Plaintiffs moved for judgment non obstante veredicto. Motion overruled, and judgment for defendant. Appeal by plaintiffs.
Howard Perry for appellants.
Phillips and Battle Mordecai contra.
When one member of a firm buys goods for the firm on his own credit, which goods are received and used by the firm without disclosing the fact that he is a member of the firm, the vendor has a right to hold the firm liable on the ground that he who gets and uses goods ought to pay for them. This proposition is sustained by the cases, and is so consonant to every principle of fair play (423) and common honesty as not to require the authority of cases to support it. If a vender sells goods to a firm and chooses to take the obligation of the purchasing parties, and waives his right to hold the firm liable, he may do so. But in such a case it is necessary for the firm to prove that the vendor knew that the party was a member of the firm and elected to give credit to the purchasing parties alone, in other words, to take less instead of the greater security to which he was entitled.
In our case the true question was, Did the plaintiffs know that the goods were bought for the firm of Plummer, Lewis Co.? This is agreed. In the second place, in giving credit to Plummer, Young Co., did the plaintiffs know that Plummer, Young Co. was a member of the firm of Plummer, Lewis Co., and with this knowledge elect to give the credit to Plummer, Young Co. and waive the right to hold the firm of Plummer, Lewis Co. responsible for the goods which were bought for its use, and of which it had the benefit? There is error in not submitting the case to the jury in this point of view.
As the case goes back for another trial, it may be well to observe the fact that Plummer, Lewis Co. had agreed to allow one of the firm, to wit, Plummer, Young Co., 2 1/2 cents commissions for making the purchase was not made known to the plaintiff, and it is not seen upon what principle they could be affected by it. So it is not seen how the fact that after Plummer, Young Co. went into bankruptcy Lewis settled the price of the goods with the purchase of a note from the assignee in bankruptcy, given for the price (it is not stated at what time the note was given) could in any way affect the plaintiffs' cause of action.
PER CURIAM. Venire de novo.