Cottrill v. Vanduzen

When persons hold themselves out to the world as partners and conduct as such, those dealing with them may hold them responsible as partners, though there be no partnership in fact. If any evidence be given before an auditor, which has a legal tendency to prove a fact in controversy before him, his decision upon the weight and sufficiency of the evidence is conclusive. Where the auditor, in an action upon book account, has reported, that one of the defendants so conducted in reference to the business of his co-defendants, who were proprietors of a stage coach and team, as to entitle the plaintiff to hold him responsible as a partner with them, and it appeared before the auditor, that such defendant had sometimes driven the stage, and had purchased and otherwise furnished some portion of the grain for the horses, and had written letters to the plaintiff, respecting the account in suit, such as he would have been expected to write, had he been in fact a partner, it was held, that the decision of the auditor upon this point was conclusive. The declarations of one of the defendants, in such case, that the defendants were jointly interested in the business, are only admissible to establish his own liability, and cannot be received to charge his co-defendants.

Book Account. Judgment to account was rendered, and an auditor was appointed, who reported the facts as follows. The account of the plaintiff was for keeping and boarding the horses and driver of a stage coach, which run between Montpelier and Warren. In the years 1838 and 1839 the defendant Abraham Vanduzen, who resided in Warren, was the proprietor of the stage in question, and the plaintiff kept the stage horses at his tavern, and the bills therefor were paid by said Abraham. The stage was driven, most of the time, by the defendant Oliver P. Vanduzen, a son of the said Abraham, who became twenty one years of age in 1839. In January, 1840, Oliver, who was still driving, informed the plaintiff, that he and his father and his brother|H. G. Vanduzen had become jointly interested in the staging business; and the plaintiff, after that, charged his account to “Vanduzen,” — having before made his charges against “ Abraham Vanduzen.” This declaration was proved by the testimony of the plaintiff alone. Oliver P. Vanduzen died after the commencement of this suit. Oliver P. and H. G. Vanduzen lived with their father during the time of the accruing of the plaintiff’s account, except that in May, 1841, H. G. Vanduzen removed to a farm a short distance from his father’s. The stage was kept at said Abraham’s, the same as before 1840 ; oats were raised on his farm for the horses, and oats were purchased for them on the father’s credit. The father’s farm horses were run a few times in the stage; and the property was put in the list as the father’s. No notice was ever given to the plaintiff, that said Abraham was not concerned in the business. H. G. Vanduzen was employed more or less in the business, such as occasionally driving the stage, when Oliver could not, and sometimes purchasing oats ; but Oliver was the active man in the business. In July, 1841, in reply to calls by the plaintiff for payment, H. G. Vanduzen wrote two letters to the plaintiff, — the first of which was dated July 14, 1841, and was in these words; — “ Mr. Cottrill, — Sir : I take this opportu- “ nity to inform you, that we shall be up to Montpelier in the course “of next week, and shall be able to pay you a part of the money “ we are owing you, if not the whole. I hope you wo’n’t be uneasy, “ or worried. We have just received our drafts for the last quarter, “ ending June, on the offices on the road, and the quarterly dues “ from the government, on the quarter ending March, we have not “ yet received. But as soon as we receive the quarterlies we will “ settle and pay to your satisfaction, if we don’t make out to settle, “ when we are up next week.” (Signed) “ H. G. Vanduzen.” The second letter was dated July 28, 1841, and was in these words ; — “ Mr. Cottrill, — Sir : Enclosed I send you forty five dol- “ lars, you will accept, and oblige us by waiting for the rest till we “ have returns from government, when we will come up and settle “ and pay you up. It is not convenient for us to come up, as I told “ of last week.” (Signed) “ II. G. Vanduzen.” Abraham and H. G. Vanduzen testified, that in January, 1840, Abraham sold the staging business to Oliver, and that after that time Oliver had the sole interest in the business and they had none; and evidence was presented upon both sides, upon the question whether there was a partnership between the defendants. In relation to the circumstances, under which the letters above mentioned were written, the principal testimony was that of II. G. Vanduzen, who testified, that Oliver was at that time engaged in driving a stage from Hancock and requested him to collect the drafts and settle matters; and that he knew of there being a balance due from his father, and perhaps his father requested him to write; — and the auditor reported, that this testimony was credited by him. He also testified, that he did not know, how he came to use the terms “ we, ” &c., in the letters, but that he wrote as a mere agent. The stage contract ended in July, 1841; after that Oliver was interested in a stage from Hancock to Middlebury, and he owned the stage from Warren to Hancock after January, 1840. The plaintiff furnished a bill of his account, to July, 1840, to Abraham Vanduzen, made out as against him alone. The auditor reported, that he did not find sufficient proof of a specific and definite partnership, or joint interest, in the staging business between the defendants; but that he was of opinion, that the plaintiff had a right to hold all of the defendants responsible, inasmuch as the business was conducted in the manner above stated, and Abraham and H. G. Vanduzen so held themselves out to the plaintiff, that the plaintiff had a right to give the credit to all the defendants, as he did. And the auditor found a balance due to the plaintiff, subject to the opinion of the court upon the facts reported. The county court, November Term, 1849, — Redfield, J., presiding, — rendered judgment for the plaintiff upon the report. Exceptions by defendants. The auditor does not find the fact of any actual partnership; but among the facts considered by him, and reported as the ground of his decision, is the declaration of Oliver P. Vanduzen to the plaintiff, that Abraham and H. G. Vanduzen were partners with him. This was incompetent testimony to establish for the plaintiff the sole issue made in the case. McPherson v. Rathbone, 7 Wend. 216. Whitney v. Ferris, 10 Johns. 66. Tuttle v. Cooper, 5 Pick. 414. 2 Greenl. Ev. 398. Without this, there is not sufficient to show any joint liability to the plaintiff. The auditor finds, that the plaintiff gave credit to all the defendants, and that they held themselves out to him as jointly liable, and that the' plaintiff had a right, from the acts, conduct and sayings of the defendants, so to regard them. All this is matter of fact; and an inference of fact, drawn by the auditor, cannot be re-examined in this court.