Sheehan v. Fleetham

12 N.Y.S. 158, 34 N.Y. St. Rep. 665, 58 Hun 605, 1890 N.Y. Misc. LEXIS 3371

• Court: New York Supreme Court
• Decided: November 26, 1890
• Status: Published

Opinions

Learned, P. J.

This is an action for goods sold and delivered. The learned trial justice directed a verdict for defendants, and plaintiff appeals. Hutchins, one of the defendants, had carried on a drug business. He also had a half interest in the furniture business carried on by defendant Fleet-ham, brother of Hutchins’ wife. On the 27th of October, 1888, Hutchins, being in danger of a suit, executed to Fleetham an assignment of all the ■drugs, fixtures, furniture, and accounts, etc., “of which said property I am the one-half owner.” The assignment was in consideration of Fleetham’s assuming and paying off “my one-half indebtedness for drugs, goods; and all property connected with the drug business, * * * of which I am the half ■owner.” The business continued in the same name. On the 13th of March, 1889, Fleetham executed an assignment to Hutchins’ wife. This recited the assuming and paying “off my one-half indebtedness for drugs, goods, and all property connected with the drug business,” etc., “ of which I am one-half "owner,” and conveyed to Mrs. Hutchins all of Fleetham’s right in the drugs, ■etc., and amounts “of which I am one-half owner.” The plaintiff’s firm from June 2, 1888, to March 8, 1889, sold goods for this drug-store amounting to $644.84. There was paid to them October 3, 1888, $120; February 5, 1889, $100. About the 1st of November they learned through a commercial agency of the sale by Hutchins & Fleetham. In reliance on that information they made the subsequent sales. Their account was still kept in the name of Hutchins. About April 16,1888, plaintiff saw Fleetham, and asked ■him if he was a half owner of Hutchins’ drug store, and he said he was. Mr. Bookstaver, a witness, testified that about that time he saw Fleetham, and asked him if he was not a partner in the Hutchins concern. He replied that he was a half owner; had been a half owner from June previous till ■October, (as the witness thought;) then, that he bought out the other half, and owned the whole; that he had sold out the business, or was about to sell out the business that day. Being asked why he was not going to pay the claim represented by Mr. Bookstaver, he said that, while he was a partner, he was not liable, because he had not ordered Hutchins to buy these particular goods, and had not ordered them himself. The witness says that Fleet-ham told him distinctly that he was a partner from June previous till a certain period, (the witness thought, October;) then, that he purchased the balance, and became sole owner. Mr. Kenyon testifies to the same effect. Thus we have the testimony of these witnesses that Fleetham admitted that he was a partner in the business from June, 1888, and that-in October (as the witness thinks) he bought out the balance, and became the sole owner. With these statements the assignment from Hutchins harmonizes, inasmuch as Hutchins calls himself the “half owner,” and speaks of Fleetham’s securing and paying Hutchins’ “one-half indebtedness.” Who was the other half owner, and whose the other half indebtedness? It is true that Fleetham denies that he said what these three witnesses state; but that made a question for the jury. It'is undoubted that, from October 27th, Fleetham was either-half owner or whole owner of the business and property, including the accounts and account-book. Of course it is possible for two persons to be joint. owners of property, and yet not partners. But when one carrying on a business of buying and selling assigns half of the property, including accounts, to another, and goes on with the buying and selling as before, with the-knowledge of the assignee, there is quite strong evidence from which the jury may infer that the assignee consents to share in the business as a partner;, still more, if the assignee himself had previously been a half owner of the-business. It is not necessary to decide whether or not the learned justice should have directed a verdict for the plaintiff. There was certainly evidence - to go to the jury on the question of partnership. The judgment should be reversed, and a new trial granted, costs to abide the event.