Kahn v. Brilliant

BELCHER, C. The plaintiff brought this action to recover the value of certain goods, wares and merchandise alleged to have been sold and delivered to the defendants, who were co-[416]partners doing business under the firm name of A. I. Brilliant & Co. The defendant Byington only appeared, and by his answer he denied that he was a partner with the other defendants. The case was tried by a jury, and the verdict and judgment were in his favor. From this judgment and an order denying his motion for a new trial the plaintiff appeals.

The only point made for a reversal is that the court erred in refusing to give to the jury a certain instruction asked by the plaintiff. In charging the jury, the court, among other things, said: “Now, there are two essential points in dispute here, and it is around these two points that your deliberations must crystallize. These points are substantially these: Was or was not Mr. Byington a partner in this firm of A. I. Brilliant & Company on or after December 17, 1889 ? Or, if he was not a partner, did he (Mr. Byington) permit himself to be held out or represented as a partner in such firm at any time to third persons, who gave credit to such firm on the strength or faith of such representations f ’ ’ The court, then, after stating the law very fully as to general and special partnerships, and as to the liability of every general partner, read to the jury sections 2444 and 2445 of the Civil Code, which are as follows:

“Sec. 2444. Anyone permitting himself to be represented as a partner, general or special, is liable as such to third persons to whom such representation is communicated, and who on the faith thereof give credit to the partnership.

“Sec. 2445. No one is liable as a partner who is not such in fact, except as provided in the last section. ’ ’

Following this, the court said: “If you should find, from the evidence, that Mr. Byington was in fact a partner (as I have explained that term to you) in the firm of A. I. Brilliant & Company on and after December 17,' 1889, then I charge you your verdict must be in favor of the plaintiff for such amount as may have been proven here, which you will get later on. Again, if you find from the evidence that Mr. Byington was not in fact a partner in such firm on or after December 17, 1889, but should find that Mr. Byington permitted himself to be held out or represented as a partner in such firm at any time to third persons, and such third persons gave credit, on the faith of such representations, to such firm, then Mr. Byington would be liable to such persons, and your verdict should