Opinion
33844.
DECIDED FEBRUARY 28, 1952.
Complaint; from Fulton Civil Court — Judge Etheridge. September 19, 1951.
R. B. Pullen, for plaintiff.
Fraser Shelfer, E. R. Tyson, pro se, for defendant.
1. The recharge of the court to the jury was in conformity with the request of the jury and answered their questions, and was not error for any reason assigned.
2. The verdict was authorized by the evidence, and the trial judge did not err in overruling the motion for a new trial.
DECIDED FEBRUARY 28, 1952.
J. R. Elliott Jr. brought suit in the Civil Court of Fulton County against E. R. Tyson of Fulton County, Georgia, and H. B. Floyd Sr. of Covington, Newton County, Georgia, alleging that the defendants were operating a used-car business as a partnership in the trade name of Gateway Motor Company in Atlanta, Georgia, and that the defendants had failed to remit to the plaintiff proceeds from the sales of certain automobiles belonging to the plaintiff. Tyson was served in Fulton County, and Floyd was served in Newton County, a second original having been issued for that county. Tyson did not answer, but Floyd filed a plea to the jurisdiction, alleging that he was not a resident of Fulton County but was a resident of Newton County, Georgia, and subject to the jurisdiction of the courts of that county; and that he was never in partnership with E. R. Tyson and was not subject to the jurisdiction of the court in which the suit was brought.
The case proceeded to a trial of the issue raised by the plea to the jurisdiction. Floyd testified in support of his plea substantially: that he lived in Newton County and was the Studebaker dealer there; that he bought the used-car lot known as the Gateway Motor Company from J. R. Webster on January 17 or 19, 1949, and owned and operated it until February 20, 1949; that he bought the fifteen or twenty cars on the lot at their appraised value and also paid $1500 for the good will, trade name, office equipment, and the lease; that Tyson operated the lot for him as he had done previously for Webster, except that Floyd agreed that Tyson should receive 50% of the net profits as compensation in lieu of salary, instead of the 40% of net profits which Tyson had received from Webster; that Tyson did not put up any money to make the purchase, and no agreement was made as to Tyson assuming losses, but Floyd was to assume all losses; that on February 20, 1949, after complaints that Floyd was operating in another Studebaker dealer's territory, Floyd sold the lot with eight or ten used cars to Tyson on credit, taking a note for $2500 from Tyson, who was to assume the loan on the cars; that Tyson paid him $100 on the note; that Floyd and Tyson did business independently after that, although Floyd agreed to and did obtain loans on cars purchased by Tyson after February 20, 1949; that Floyd was in and out at the lot during 1949, trying to collect money owed him by Tyson and to get Tyson to sell cars for him; that Tyson gave up the lot at the end of 1949, and in early 1950 Floyd's wife leased the lot from the owners of the land, with Floyd guaranteeing the payment of rent; and that Floyd's son then operated the business, Floyd having lent him the money to start it again.
The plaintiff, Elliott, testified in part that he had had dealings with Tyson and Webster for about three or four years before January of 1949, when Tyson introduced Floyd to the plaintiff as his new partner, and stated that Webster had retired and that Floyd had bought out his interest in the business; that the plaintiff never received notice from any source that Floyd had withdrawn from the business, and he frequently saw Floyd there during the remainder of the year, as he went by either to sell cars to them or to buy from them.
Tyson testified in substance: that, after Webster sold his interest in the business to Floyd, Floyd told him that he would give him 50% of the net profits, after expenses were paid, if he would stay on, and that his relation with Floyd was the same as with Webster, except for the difference in compensation; that there was no agreement that Tyson would pay his proportion of the losses, if any; that he had put no money into the business and had received nothing for his interest in the partnership when it was sold to Floyd; that the note for the purchase of the business was not executed until 60 or 90 days after February 20, 1949; but that, after that date, he treated Floyd as any other customer, disposing of some twenty-five or thirty used cars for him, under an agreement that Tyson was to get any amount brought by the cars over a minimum sales price set by Floyd, but that Floyd had no interest in other cars sold.
J. R. Webster testified in substance: that, when the business was sold, it owed him what was received as the proceeds of the sale, and that for this reason Tyson did not get any of the proceeds; that, if he had considered Tyson financially responsible, he would have expected him to bear his part of any money lost.
Various items of documentary evidence were introduced, among which was the following letter on the letterhead of Gateway Motor Company: "February 24th, 1949. Southern Savings Bank, Atlanta, Georgia; Mr. Wade, Manager — As we have increased our stock of late model clean cars, I would appreciate it if you will increase my wholesale limit $5000.00 above what it is set at. In case I need it I can not be cramped. As you know we are giving you all the finance business, will appreciate this favor. Yours very truly, Gateway Motor Company, by H. B. Floyd."
The jury returned a verdict in favor of the plea of no partnership, and the plaintiff's motion for a new trial was overruled. To this judgment the plaintiff excepted.
1. Ground 4 of the motion for a new trial sets out the portions of the original charge of the court to the jury, applicable to the issue of partnership as raised by the evidence, which was satisfactory to the movant. After retiring and deliberating for some time, the jury returned to the courtroom, where the foreman said to the court, "We would like to ask the question, like to ask you to read that reference there to what constitutes a partnership in the State of Georgia." The trial judge then read again Code §§ 75-101 and 75-102, and asked the foreman, "Now was that the section?" The foreman replied, "I think that covers it." A juror said, "I believe there were two. What else did you have in mind?" Another juror replied, "I guess that is it." The court stated, "If there is anything further, I can have the reporter read back what I charged again, if there is anything further." The foreman said, "I think that about covers it, Your Honor."
A juror then addressed the court as follows: "There is one question there, Judge, that we were considering, as to whether the fact that part of the gross profits were paid out by both parties, whether that actually meant that, or helped constitute a partnership." The trial judge then charged as follows: "Gentlemen, you will have to consider all of the facts in the case, as to whether or not it actually created a partnership. Now the law says that joint interest in the profits and losses of a business shall constitute a partnership so far as third persons are concerned. A common interest in the profits alone shall not. Now I further charged you, and I will be glad to have it read, have that read over to you again or restate it to you again, that if there is just no understanding about losses, in other words, they just don't contemplate that there are going to be any losses, then the law would presume if they otherwise intended to form a partnership and the only agreement they had was, `what we will do with the profits,' then the law would presume that they were both going to be liable for the losses, if any. On the other hand, if it was distinctly and definitely understood that he is not going to be liable for any of the losses, why it definitely is not a partnership. On the other hand, if there is just nothing said about it and the only thing they discuss is what they are going to do with the profits and they don't anticipate ever losing anything, why then the law would presume that both would share in the losses as well as in the profits and it would be a partnership. Does that answer your question?" The foreman answered, "Yes, I think so," and a juror said, "Yes."
The movant complains that the recharge was not in conformity with the request of the jury, but that the court undertook to recharge the jury on the law covering the formation of partnerships, the effect of which was to withdraw the correct charge previously given by the court; that the recharge did not authorize the jury to find that Floyd was an ostensible partner as shown by the evidence; and that the recharge was erroneous for the reason that only so much of the law was recharged by the court as the jury desired, without regard to a recharge on the whole question of law concerning the question of partnership.
In ground 5, the movant assigns error on the overruling of his motion to recall the jury, to withdraw the recharge, and to charge the jury on the whole question of law as to what constituted a partnership or to read the charge as originally given, as to the contents of which the jury was in doubt, which ruling was harmful in that it excluded from the jury the consideration of an ostensible partnership and covered only so much of the law as the individual jurors desired.
We think that the recharge of the court was in conformity with the request of the jury and answered their questions, and was not error for any reason assigned. The trial judge gave the additional charge requested with a fuller explanation and application to the facts than he had originally made, and this part of the charge was favorable to the plaintiff, rather than prejudicial against him.
The contention of the movant, that it was error to fail to recharge that "An ostensible partner is one whose name appears to the world as such, and he shall be bound though he has no interest in the firm," is without merit, for it does not appear that the jury was in doubt about this principle, which was given to the jury in the original charge. The trial judge need not reread or again give his entire charge, but need charge only such parts thereof as are necessary to answer the jury's request, for it may be assumed that the jurors have comprehended such parts of the original charge as were correctly stated to them and concerning which they have raised no question. See Kerns v. Crawford, 51 Ga. App. 158 ( 179 S.E. 854); Shermer v. Crowe, 53 Ga. App. 418 ( 186 S.E. 224); Southeastern Greyhound Lines v. Durham, 62 Ga. App. 99 ( 8 S.E.2d 99). Ground 5 is also without merit.
2. The verdict was authorized by the evidence. Floyd's testimony showed that Tyson was not his partner, but was his employee or agent and was to be paid for his services by a percentage of the profits from the business, if any, as a measure of his compensation and without his having an interest therein. Tyson testified, in part, that he had been managing Webster's lot for several years; that he agreed to stay on and manage the same lot for Floyd, for 50% of what they were going to make instead of a salary; and that he had put no money into the business. See Hannifin v. Wolpert, 56 Ga. App. 466 ( 193 S.E. 81); Sauls v. Scott, 56 Ga. App. 243 ( 167 S.E. 311); Moore v. Harrison, 202 Ga. 814 ( 44 S.E.2d 551); Dawson National Bank v. Ward, 120 Ga. 861 ( 48 S.E. 313).
While it is true that the testimony of the plaintiff, to the effect that Tyson had introduced Floyd to him as a partner was not controverted, there was no evidence showing that the plaintiff dealt with Gateway Motor Company on the faith of such representation or that this caused him to do so. "Persons who are mere apparent partners as distinguished from actual partners, are responsible as such only to those who have acted on the faith that the appearance was according to the reality." Bowie v. Maddox, 29 Ga. 285 (3) (74 Am. D. 61). "It must appear that the opposite party acted upon the putative status and was misled thereby." Mims v. Brook Co., 3 Ga. App. 247, 249 ( 59 S.E. 711). See also Stewart v. Brown, 102 Ga. 836 ( 30 S.E. 264). The plaintiff testified that he had dealt with Tyson and Webster as Gateway Motor Company for three or four years before that time, and continued to trade in used automobiles with Tyson when Floyd purchased the business from Webster. It further appeared that the checks for the debt sued on were made out on forms entitled, "E. R. Tyson, Used Cars," rather than "Gateway Motor Company," and they were signed by Tyson alone. This indicates that the plaintiff was not relying on an apparent partnership which might have been created by Tyson's introduction of Floyd to him nine months previously.
The verdict was supported by the evidence, and the trial judge did not err in overruling the motion for a new trial.
Judgment affirmed. Felton and Worrill, JJ., concur.