Chase v. Stevens

19 N.H. 465

• Court: Superior Court of New Hampshire
• Decided: July 15, 1849
• Status: Published

Opinion

Gilchrist, C. J.

It is sufficient to show that persons have acted as partners, and that by their habit and course of dealing,, conduct and declarations, they have induced those with whom they have dealt to consider them as partners. Ellis v. Jameson, 17 Maine Rep. 238; Evans v. Curtis, 2 C. & P. 296; 2 Greenl. Ev. § 483; 3 St. Ev. 1070; Coll, on Part. § 769.

The position taken by the counsel for the defendants is, that if the jury can account for and explain the conduct of Muzzey, by the admitted fact that he was a tenant in common, they cannot regard his conduct as indicating that he was a partner. But we cannot consider this position to be sound. Let it be admitted that six of the defendants, one of whom was Muzzey, were tenants in common. Muzzey went to the mills for the purpose of doing, and he did certain things. But as the existence of the tenancy in common is perfectly consistent with the existence of a partnership, he might have gone to Bethlehem for the purpose of attending to the business of the partnership, or to that of the tenancy in common. What purpose he had in going there was a question for the jury. If it had been admitted that he went for the purpose of attending to his interest in the land, then, perhaps, the question might arise which the counsel for the defendants wishes to present. But he might have gone there on account of his interest in the partnership, and whether he did or did not go there with this object, is a question of fact. Let us suppose a case, where all his acts can be explained, by referring them to his interest in the land ; but let us suppose, at the same time, that the probability is by no means so great that he went there on account of the land as it is that he went there because he had an interest in the firm. Should we, in such case, adopt the lesser probability to the exclusion of the greater ? This we certainly should not be authorized to do, and we do not think the proposition of the counsel can be maintained. The instructions were placed on the only proper grounds, and the question was a legitimate one for the decision of the jury.

We might add that there are other matters, tending to show Muzzey’s interest. What had he to do with the securities, if he were not a member of the firm ? This is consistent with his being a partner, but as a tenant in common he would not ordinarily examine such matters. And although it may be said that he had an interest as a co-tenant in the disposition of the timber, it would be giving a forced construction to his conduct, to hold that he examined the securities for that purpose, when the more obvious reason would be that he had an interest in the firm.

Judgment on the verdicU '