Arkenburgh v. Short

4 Ky. Op. 563, 1871 Ky. LEXIS 253

• Court: Court of Appeals of Kentucky
• Decided: April 26, 1871
• Status: Published

Opinion

Opinion of the Court by

Judge Lindsay:

No reason is assigned why Short resorted to a petition in equity instead of proceeding by motion upon the bond executed to suspend the sale under his execution, as provided for by section 716 of the Civil Code.

There was, however, no objection taken in the circuit court to the mode of proceeding adopted, hence such objection can not be made available in this court. The only material issue presented by the pleadings is as to whether or not Sproy and Arkenburgh were partners. Short specifically alleges that they were partners, and that by reason of their partnership Sproy owned one-half of the tobacco levied on. The answer of the appellants directly con troverts both of these propositions.

The only evidence tending to establish the partnership is the fact that the business was conducted in the name of A. Sproy & Co., and that Sproy, by his conduct, and conversation, held himsqlf out to the public as a partner. These facts of themselves would he sufficient to make him responsible for the payment of the debts contracted by the concern, hut we can not admit that they could have the legal effect of making the property in his possession liable for the payment of debts contracted by him years before Arkenburgh had any connection with him, unless the parties seeking to subject the property were able by other aud competent evidence to establish thát a partnership actually did exist.

Owen, for appellant. Balter, for appelee.

It is not shown that Arlcenburgh had any knowledge of the fact that Sproy was conducting the business in his own name, nor that he had information of -the fact that Sproy claimed to be his partner.

Sproy’s employes, whose depositions were taken by the appellee, did not regard Sproy a partner in the concern, although it was conducted in his name, for the very good reason that they knew him to be hopelessly insolvent and wholly unable to raise any part of the large sums of money being used in the purchase of tobacco.

Again, if the fact that Sproy held himself out as a partner, and conducted the business in his own name, can be used as evidence against the appellant. Then certainly the written agreement between Arkenburgh and Sproy, which is signed by both parties, and which seems to have been read upon the trial of this cause without objection is competent and convincing in his favor, this writing establishes conclusively that Sproy was a mere agent, acting for the appellant, having no interest whatever in the tobacco being purchased and shipped. It is true that the terms of this agreement were afterwards changed by 'an oral contract, but that change had reference to the manner in which the business was to be conducted and was not intended and did not give Sproy an interest in the business or the tobacco.

Considering all the evidence in the record, we are of opinion that the appellee failed satisfactorily to establish the existence of the partnership.

The judgment is reversed, and the cause remanded with instructions to dismiss Short’s petition.