Johnson v. Slusser

655 P.2d 261, 33 Wash. App. 439, 1982 Wash. App. LEXIS 3411
CourtCourt of Appeals of Washington
DecidedDecember 16, 1982
DocketNo. 4690-7-III
StatusPublished

This text of 655 P.2d 261 (Johnson v. Slusser) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Slusser, 655 P.2d 261, 33 Wash. App. 439, 1982 Wash. App. LEXIS 3411 (Wash. Ct. App. 1982).

Opinion

Munson, J.

William Slusser and Steve Olsen appeal from a trial court's determination that they were jointly and severally liable to Joe Johnson for debts incurred while logging. We reverse as to Mr. Slusser and his wife and the finding of a partnership. We remand for determination of the amount to be awarded Mr. Slusser.

In 1979, Joe Johnson made his living by purchasing standing timber, having it logged, and then selling the logs to mills. Steve Olsen was hired as an independent logger, and Mr. Johnson paid him on a "draw and settlement” system in which the contractor would either pay the logger for logs for which the contractor had also been paid (settlement) or advance money for logs piled or stacked but not taken to the mill (draw). In a draw, the parties would estimate the number of board feet in logs down and stacked. When the contractor was paid at the mill for the actual number of board feet, he would reconcile with the logger.

Exhibit 1 shows a series of draws beginning in June 1979. By July 3, 1979, prior to Mr. Slusser's earliest appearance, Mr. Olsen owed $8,184.55. By October 10, 1979, Mr. Olsen owed Mr. Johnson $9,723.10. This was never paid and is the debt Mr. Johnson argues Mr. Slusser assumed.

In July 1979, Bill Slusser worked for Steve Olsen for 3 days. Mr. Slusser testified he did not work again until he moved up from California in late October. Mr. Johnson testified Mr. Slusser arrived in mid-July and returned periodically during the summer. Later, however, Mr. Johnson stated he was unsure whether Mr. Slusser had worked in August or September. Mr. Johnson's son testified Mr. Slusser worked in early July as Mr. Slusser had stated. Mr. Johnson's son-in-law testified he first saw Mr. Slusser in July and periodically until October, when Mr. Slusser began to work full time. On cross examination, he admitted he did not know when Mr. Slusser was there prior to October, but stated Mr. Slusser was there three or four times.

Mr. Johnson testified he asked Mr. Olsen who the stranger was working with him. Mr. Olsen replied it was his future father-in-law and "they would probably go part[441]*441ners". Mr. Johnson's son-in-law understood they were going to be partners, but he did not believe they were partners in July. Mr. Johnson also testified the partnership was formed after the Duckworth job, which began approximately June 16, 1979, and ended in late November 1979. Mr. Slusser and Mr. Olsen both testified the partnership issue did not arise until November; a formal partnership agreement was signed February 13,1980. In the partnership agreement, they agreed Mr. Olsen would be the managing partner. Nothing in the agreement indicates the partnership assumed the existing debts of either partner.

Mr. Slusser testified he did not believe Mr. Olsen owned the logging equipment free and clear, but he was unaware until after the partnership was formed that Mr. Olsen owed money to Mr. Johnson. Mr. Olsen testified he told both Mr. Slusser and Mr. Johnson he would be personally liable for all past debts. Mr. Johnson testified he had not discussed with Mr. Slusser whether the partnership would assume Mr. Olsen's debts.

When Mr. Olsen could not make his 1980 payment on a D-6 Caterpillar, it was repossessed and he quit working. Mr. Slusser continued to work for 3 weeks, but quit when Mr. Johnson refused to pay him for his work because of the $9,723.10 debt. Mr. Slusser filed a lien against Mr. Johnson's logs; Mr. Johnson countered with a lawsuit, claiming Mr. Slusser was liable as a partner for the debt. He also claimed he was damaged by the effects of the Hen. The trial court agreed, held the $9,723.10 debt became a partnership obligation when the formal partnership was formed, found damages of $8,335.45 arising from the wrongful filing of a lien, and subtracted $6,299.36 which Mr. Johnson owed the partnership. Mr. Olsen and Mr. Slusser appealed.1 Mr. Slusser contends the trial court erred in entering the fol[442]*442lowing conclusion of law:

2. Steve Olsen and William Slusser, by their acts and conduct in working together and holding themselves out as partners have created a partnership by estoppel under RCW 25.04.160.[2]

RCW 25.04.160 can best be explained by reference to 68 C.J.S. Partnership § 31, at 456 (1950):

When persons, not partners inter se, have held themselves out as partners, and thereby induced others to deal with them as such, it is no defense that there was no partnership between them. One who holds himself out as a partner becomes liable as such to those who deal with the firm in the belief that he is a partner, and he cannot avoid liability on the ground that a recorded instrument would show that he had no interest in the partnership. The same liability attaches to one who knowingly allows himself to be held out as a partner.

(Footnotes omitted.) The statute adds that representation can be made by either word or conduct.

[443]*443Our review is limited to determining whether substantial evidence supports the findings and the findings in turn support the conclusions of law. Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 617 P.2d 704 (1980); Mayo v. Mayo, 75 Wn.2d 36, 448 P.2d 926 (1968).

The following challenged findings of fact relate to the representation of partnership:

4. Joe Johnson, concerned about liability as timber owner, inquired as to the relationship between Steve Olsen and William Slusser and was told that they were partners.
5. William Slusser made statements to loggers working on Joe Johnson's timber that he was Steve Olsen's partner during the summer and prior to September 24, 1979.

Neither finding is correct in its entirety.3

Mr. Johnson did inquire of Mr. Slusser's relation to Mr. Olsen in order to ascertain whether Mr. Slusser was an employee who needed to be covered by industrial insurance. Mr. Olsen told him they would be partners in the future. Mr. Johnson's son-in-law also understood the partnership would exist in the future and testified Mr. Slusser worked only three or four times between July and October. The record contains nothing to indicate Mr. Slusser told anybody during this period that he was going to be a partner with Mr. Olsen, much less that he was a partner. The record shows Mr. Johnson paid Mr. Slusser and Mr. Olsen separately for this work. Thus, nothing in the record will support findings which indicate Mr. Slusser held himself out or allowed Mr. Olsen to hold him out as a partner. A [444]*444partnership by estoppel cannot exist unless a person holds himself out as a partner or permits another to do so. Lowenstein v. Whitelaw, 178 Wash. 428, 34 P.2d 1108 (1934); Lansdown v. Huff, 103 Wash. 277, 174 P. 21 (1918). Assuming arguendo the record contains sufficient testimony to show Steve Olsen held Mr. Slusser out as a partner, both the statute and the common law require that Mr.

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Related

Liebergesell v. Evans
613 P.2d 1170 (Washington Supreme Court, 1980)
Brown v. Safeway Stores, Inc.
617 P.2d 704 (Washington Supreme Court, 1980)
Mayo v. Mayo
448 P.2d 926 (Washington Supreme Court, 1968)
Marszalk v. Van Volkenburg
604 P.2d 501 (Court of Appeals of Washington, 1979)
Lowenstein v. Whitelaw
34 P.2d 1108 (Washington Supreme Court, 1934)
Lansdown v. Huff
174 P. 21 (Washington Supreme Court, 1918)
Downie v. Savage
129 P. 1096 (Washington Supreme Court, 1913)
Waldrop v. Holland
588 P.2d 1237 (Court of Appeals of Washington, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
655 P.2d 261, 33 Wash. App. 439, 1982 Wash. App. LEXIS 3411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-slusser-washctapp-1982.