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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 378 In the printed points submitted by the counsel for the appellant only two grounds are urged for the reversal of this judgment. It is unnecessary therefore to discuss any other.
The first is, that the plaintiff should have joined Moses M. Matthews as a party defendant. Matthews was no doubt a general partner, and participated in the profits and losses of the concern. But there is no evidence that he *Page 379 was generally known as such partner; or that the public, in the proper sense of that term, was ever apprised of his connection with the firm. No doubt he could have been sued and held liable on account of his actual membership in the firm, but the question is, was the plaintiff bound to join him as a defendant with the ostensible members of the firm. His name did not appear in the firm name; he did not participate except in an advisory manner in the general and ordinary business of the firm; his connection with it would not be naturally inferred from their mode of business, nor be likely to be known except to those who loaned money or extended pecuniary credit to the firm. It cannot be said that there was any general knowledge of the facts. The only ground for presuming such general knowledge would be the fact of Matthews' name appearing upon the cards of the firm. The difficulty is, there is no evidence that these cards were in any way circulated, or issued to a single person. And it belonged to the defendants, I think, to bring out a fact so vital to the defence. There being, therefore, every thing in the apparent mode of transacting their business to indicate that Bloss Adams constituted the sole members of the firm — nothing whatever to signify to ordinary dealers with the firm that Matthews had any connection with it — an entire omission on the part of the defendants ever to communicate the fact of such connection to the plaintiff — actual ignorance on the part of the latter of such connection — and apparent good faith on his part in treating the defendants as the only parties interested, I am inclined to think the referee was right in regarding Matthews as a dormant partner. He finds that he was so — treating such finding it is true as a question of law — but it being in truth rather a question of fact or of mixed law and fact — a conclusion not unwarranted by the evidence in the case nor by the facts which the referee has detailed in his report. It is conceded that a dormant partner need not be joined as a co-defendant in the action. The definition of a dormant partner is not very clearly given in the adjudicated *Page 380 cases, or the elementary treatises on partnership. It implies, perhaps clearly enough, one who is not an active partner nor generally known as a partner. But to be such I apprehend it is not essential that he should wholly abstain from any actual participation in the business of the firm, or be universally unknown as having a connection with it. Nor does it necessarily imply, as I conceive, a studied concealment of the fact. I will not undertake to analyze the various definitions of such a partner, but content myself with a reference to some of the elementary treatises, and a few adjudicated cases. (See Story on Partnership, sec. 80; Collyer on Partnership, sec. 4; Bissett on Partnership, page 5; Kelley v. Hurlburt, 5 Cowen 534;Clarkson v. Carter, 3 Cowen 84; N.Y. Dry Dock Co. v.Treadwell, 19 Wend. 525.)
Even if the evidence on this point be regarded as nearly balanced, or slightly preponderating in favor of the defendants, I think we may well support the finding of the referee on rules of interpretation and review applicable to questions of fact.
It is held, in the superior court of New York, that where one person enters into a contract with two others, by name, without knowing or having, at the time, reason to suspect that they have a partner in the business to which such contract relates, such two persons may be sued without joining such third person; and he may be regarded as to such transaction, and under such circumstances, as a dormant partner, although the fact of his connection with the firm come to the knowledge of the plaintiff before the bringing of the suit. (Hurlbut v. Post, 1 Bosw. 36; See also N.Y. Dry Dock Co. v. Treadwell, 19 Wend. 525;Clarkson v. Carter, 3 Cowen, 84; Clark Bissell v. Miller Lozee, 4 Wend. 628; Mitchell v. Dall, 2 Harr. Gill. 159, 171.)
The remaining point discussed by the appellant is that the judgment appealed from can not be sustained on the merits. *Page 381
I do not think this question is open for discussion. We cannot interfere with the conclusions of the referee on the questions of fact. There is plainly good evidence — I think preponderating evidence — to support his finding, abundant evidence to justify the refusal to non-suit, and to sustain the verdict of a jury.
It is said that the report is unsustainable because the referee has found, as one of the facts in the case, that Bloss Adams sold the plaintiff clover and timothy seed to the amount stated in his report, besides a quantity of garden seeds, the amountand value of which does not appear; and that the price of the latter might well account for the apparent excess of the amount of the plaintiff's payments over his receipts.
But it is not the business of an appellate tribunal, reviewing the case simply on questions of law, to criticise with much nicety the findings of fact in order to speculate on some phases of the case which were not probably presented in the court below, or were susceptible of ample explanation there. It may well be answered that the garden seeds were not urged as an item of the defendant's claim in the court below, or were satisfactorily accounted for there in a way not necessary to be shown in the case, as no point was made thereon. Certain it is that neither the quantity nor the value of the garden seeds is shown, and cannot therefore be taken as justifying an implication against the correctness of the referee's report, nor as justifying an allowance equal to the balance which he found in favor of the plaintiff. Certain it is, also, that he found the defendants wereover-paid — were over-paid by mistake — and by mistake on amatter of fact, which makes the allowance for such over-payment a lawful credit in favor of the plaintiff, and deprives the defendants of the benefit of the further ground taken by them, that the payment was a voluntary one, made with full knowledge of the facts. In the light of the referee's report and of the legal definition of a voluntary payment, it was neither voluntary nor made *Page 382 with such a knowledge of the facts as barred the plaintiff's title to relief.
The judgment should be affirmed.
DENIO, Ch. J., and INGRAHAM, J., were for reversal, on the grounds that the burden of proof was on the plaintiff, and that the value of the garden seeds must be shown before there could be said to be an over-payment.
All the other judges being for affirmance, judgment affirmed. *Page 383