Howes v. Fisk

30 A. 351, 67 N.H. 289

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1892
• Status: Published

Opinion

Smith, J.

The Avritten contract Avas witli Fisk alone. Fisk and Hanson not being partners inter sese, Fisk in entering into the contract acted for himself, and not for himself and Hanson jointly. They were not partners as to third persons, unless Hanson is estopped to deny that he was a principal. Eastman v. Clark, 53 N. H. 276. But there is nothing to show that the plaintiff was induced to enter into the contract relying upon Hanson as a principal.

It does not appear that he kneAv Hanson was to be interested with Fisk in draAving the wood until three Aveeks after the contract Avas entered into, and then, as the report finds, it “ was not changed, unless, as above stated, by Hanson’s commencing to haul the Avood.” Neither the price, the number of cords, nor the time of payment was changed. As Hanson was not in fact a principal, his interest in the contract must have been that of a sub-contractor or employé, and his objection to the provision relating to the final payment for the hauling (made, it would seem, from his uncertainty as to when or by whom he would be paid) Avas removed by McNally’s assurance that the company Avould Avithhold one half the price until the hauling should be completed, and would see it paid. If the finding of the referee that the plaintiff reasonably understood that they were jointly interested in the contract means that he might understand they were partners, still, as the terms of the contract entered into three weeks prior to that interview Avere not changed, it is difficult to see how the defendant is estopped to deny that he was a partner. The finding that the plaintiff reasonably understood that the defendants were jointly interested in tlie contract relates to the interview between the parties three weeks later.

Exception sustained.

Blodgett, J., did not sit: the others concurred.