Fletcher v. Pullen

Miller, J., delivered the opinion of the Court. The plaintiffs who are nurserymen in Milford, Delaware, sued Bramble and Fletcher as partners in the same business at Cambridge in this State, for fruit trees sold and delivered to them in the autumn of 1886. Bramble died before the trial, and Fletcher defended upon the ground that he was not a partner. The exceptions relate mainly to the admissibility of evidence upon the question, not whether Fletcher and Bramble were actually partners inter sese, hut whether Fletcher ²¹³ had held himself out, or had permitted himself to he held out, as a partner, so as to become responsible to third parties.

The law on this subject, well established by authority, may be stated thus: The ground of liability of a person as partner Avho is not so in fact, is that he has held himself out to the world as such, or has permitted others to do so, and by reason thereof is estopped from denying that he is one as against those who have, in good faith, dealt with the firm or with him as a member of it. But it must appear that the person dealing with the firm believed, and had a reasonable right to believe, that the party he seeks to hold as a partner was a member of the firm and that the credit was, to some extent, induced by this belief. It must also appear that the holding out was by the party, sought to be charged, or by his authority or with his knowledge or assent. 'This where it is not the direct act of the party may be inferred from circumstances, such as from advertisements, shop-bills, signs or cards, and from various other acts from which it is reasonable to infer that the holding out was with his authority, knowledge, or assent. And whether a defendant has so held himself out, or permitted it to be done, is in every case a question of fact, and not of law.

Thomas vs. Green, 30 Md., 1 ; 1 Lindley on Part., 45; Thompson vs. First National Bank, 111 U. S., 536, 537 ; 5 Waite’s Actions & Defences, 113, 114. These general rules apply to the present case. The evidence shows that there was, in or near Cambridge, a fruit farm and nursery on about fifteen acres of Fletcher’s land which Bramble had occupied and managed from the year 1881 to 1887. The plaintiffs then proved that in October and November, 1886, they received several letters, postal-cards, telegrams, and circulars from Cambridge, signed “Fletcher & Bramble,” representing them to be partners, and the en ²¹⁴ velopes in which the letters were enclosed were stamped with the same firm name.

These letters contained orders for fruit trees, and the first of them gave a reference to a Mr. Van Horst, formerly of Milford, hut then residing in Cambridge. The plaintiffs not knowing the firm, nor by whom the letters were written, wrote to Van Horst and others inquiring as to its credit and standing, and in reply received information to the effect that Fletcher was entirely responsible, hut that Bramble was worth nothing. .Upon this information, and receiving no intimation that Fletcher was not a partner, they filled the orders and delivered the trees, relying npon his credit. Each item of this testimony was excepted to as it was offered, upon the ground that these letters, circulars, and envelopes were written and gotten up by Bramble without Fletcher’s knowledge or consent. We think, however, they were all admissible, not because the acts and declarations of Bramble would bind Fletcher, as of course they would not unless he was an actual partner, hut for the purpose of showing that the plaintiffs believed, and had good reason to believe that he was a partner, and that they trusted the supposed firm upon the faith of his'responsibility.

To prove this was an important link in the plaintiffs’ case, and evidence tending to prove it was in our opinion admissible. The plaintiffs then proved that an advertisement signed “Fletcher & Bramble,” calling attention to their nursery, offering their trees for sale, and soliciting from the public continuance of confidence and orders, was published in two weekly newspapers of Cambridge where Fletcher lived for three months during the year 1884. In one of these papers there was also a local notice of the advertisement. These were also prepared, inserted, and paid for by Bramble without Fletcher’s knowledge, hut it was proved that during the time of ²¹⁵ their publication he was a subscriber to both papers, and they‘were regularly sent to him.

There is also clear proof that he actually knew of them while they were being published and never inserted in either of the papers any denial of the partnership. From all this it was competent for a jury to infer that he was held out to the public by Bramble as.a partner, with his knowledge and assent, and we are of opinion the plaintiffs were entitled to prove this though they never saw the advertisements and were not influenced by them in trusting the firm. They had already proved they had so trusted it in good faith, and upon good grounds, and we think they had the' right to resort to these antecedent advertisements and to this proof for the purpose of showing that Fletcher had been so held out to the public with his knowledge and assent. It was evidence to go to the jury upon that subject, and if uncontradicted would have made him a partner, at least, as to all third parties who had trusted the firm in good faith upon that supposition.

Having knowledge of these advertisements it was-his duty to deny the partnership if he wished to escape liability. But what was he to do and how much ? We do not say he was under a legal obligation to publish a repudiation, of the partnership in the same newspapers or in any other, though this would seem to be a very obvious and the most efficient mode of proclaiming such denial,