Farmers & Merchants Bank v. Kirk

HERNDON, J.

The sole question presented by this appeal is the sufficiency of the evidence to support the trial court’s finding that defendant and appellant, Conn Pulos, was a partner in the firm described as Amboy-Cal Gypsum Company, a copartnership.

Plaintiff recovered a deficiency judgment against appellant and others in the sum of $3,805.84 after repossession and sale of certain tractor equipment which originally had been sold under a conditional sales contract. The trial court found that Albert A. Robbins, Harry Wind and appellant Pulos were partners, doing business under the name of Amboy-Cal Gypsum Company, a copartnership (hereinafter referred to as “the Company”). Neither the liability of the Company nor the amount of the judgment is questioned. Appellant alone appeals, denying only the sufficiency of the evidence to establish his membership as a partner in the firm.

It appears that Robbins was the prime mover in promoting the business of the Company in the mining, processing and selling of agricultural gypsum and soil minerals. Appellant testified that he was the owner of certain gypsum properties; that he had offered to sell gypsum to Robbins and his associates on a royalty basis; that he had furnished gasoline and other supplies for the mining operations of the Company and that for a short period of time he had acted as general manager at a salary of $250 per month. Appellant denied that he became a partner, testifying that in furnishing mer

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chandise to the Company he became its creditor. He admitted that he might have signed documents for the Company but had no recollection as to the nature of any such document. He testified that in signing any documents for the Company he had acted only in his capacity as manager.

Defendant Wind testified in substance that at one time the Company had prospects of obtaining a certain “million dollar order”; that it was planned to incorporate the business when this order materialized, and that Wind, Fulos and Robbins were each to receive a one-third interest in the corporation which presumably would exploit the mineral deposits on appellant’s properties.

Respondent introduced into evidence a two-page typewritten document on the letterhead of the Company referred to as plaintiff’s “Exhibit No. 4.” This document purports to constitute a “Franchise Agreement” between the Company and one Deter man, who signed as “Franchise Owner,” and one Collins who signed as ‘ ‘ Franchisee. ’ ’ Appellant, Robbins and Wind each signed “For the Company” as indicated by the quoted designation appearing below their respective signatures. This item of evidence possesses significance not only by reason of the manner in which it was signed, but also by reason of the nature of its subject matter. The indicated purpose of the instrument was to define the respective territories in which named individuals were granted exclusive franchises to sell and distribute the products of the company. It prescribed prices and conditions of sale and provided that the franchises thereby granted should endure for a term of 20 years. It seems most reasonable that a grant of such character and importance would be executed not by an employee but by the owners of the business, that is to say, by the partners. Admittedly, Robbins and Wind signed as partners and, as we have seen, appellant affixed his signature with theirs in a manner and over a designation clearly suggesting that he signed in the same capacity as they.