Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-25
SUPREME COURT.
FULL TEXT OF DECISION FILED.
George Person and Stephen s. Smith, Respond
ents, as. William Wilson, appellant.
OPINION.

George Person and Stephen s. Smith, Respond
ents, as. William Wilson, appellant.
OPINION.
1t is conceded that the respondents and one
Converse having on the 2lst day of May, 1875, |
purchased and acquired certain tract of land |
containing mill site and water privilege on
the conditions as stated in the deed transfer
ring to them the title s.that they should COM |
plete and have in running order thereon on or |
before the LIST day of june 1876, -four or grist |
mill, to be known and run as custom mill |
by themselves, or by their heirs assigns, !
with at least two men for sets of burr" |
thereupon formed a co-partnership for |
the purpose of building the mill |
in pursuance of the conditions of such purchase
and entered upon the undertaking as co-part-
ners by commencing the construction of the
dam and the erection of a mill on the proposed
site. The evidence also tended to prove the
following additional facts: The joint enter
prise was prosecuted till some time in August,
1875, when the work was suspended aban-
doned. During this time Converse had the
personal supervision and active management
and control of the business when the mill was
being built, remaining constantly on the
ground, while the plaintiffs lived some miles
| away ami were engaged in active pursuits, Wis
dwelling house was built upon the tract into
| which Converse moved and lived. The dam
was partially constructed, foundation for the
| mill was partly put in, and the mill itself was
| mostly framed before the suspension of the
| work. After the inception of the enterprise
| the plaintiffs, as they state in their own
testimony which is uncontradicted, bought
l for the purpose of putting up the mill''
quantity of lumber described by them as "a
lot of lumber, consisting of plank timber
boards, shingles, studding and flooring of such
different kinds as would naturally be required
| for such purpose and enough to build mill
/ 3O by &c such as it appears was contemplated.
| They paid for it out of their own funds, but
delivered it on the proposed site for the purpo-
ses for which it was bought. 1t was billed in
! the name of the partnership and receipted for
accordingly Though received and paid by the
plaintiffs personally, it does not appear that
| they then or ever objected to the manner in
| which the bills were made out. On its delivery
| upon the ground belonging to the members of
the firm Converse took actual possession and
charge of it, built the house out of it, put por-
tions of it into the dam and other portions
into the foundation for the mill, and also
framed out of it the entire mill ready for
erection excepting the rafters. While this was
being done the plaintiffs visited the place from
time to time and saw the condition of things,
but made no objection far the evidence
shows, to the use that was being made of the
lumber, nor does it appear that there WAS ever
any special arrangement or understanding
between them and Converse in reference to
this lumber, other than what grew out of their
partnership joint relations in the prosecu-
ton of the common undertaking III which they
were engaged. The acts of Converse, there
fore, in taking possession of the lumber and
applying it to the uses he did, must be held
presumably to have been the acts of the firm.
The present action concerns that portion of
this lumber which was left at the time of the
suspension of the work, and which, had not
been actually used in the construction of the
house, or put in place in the dam and founda-
ton for the mill structure. The claim of the
plaintiffs includes not only the unused
portions of the lumber but the
entire frame work of the mill
not already erected or in place, though PARTIAL
, or wholly fitted therefor. The claim is vested
upon the proposition that such portion so left
ed to the plaintiffs alone. In the submission
of the case to the jury the court stated with
out objection from either side, that sit was
not controverted that Person, Smith and Con
verse We're engaged in the joint undertaking OF
erecting mill, and that they were SO engaged
as partners" Its charge, however, contains
refusal and instruction in the following Ian
guage, which was duly excepted to by the de-
PENDANTS and which is here assigned as error
VIZ: Il am requested, gentlemen of the jury
by the defendant, to instruct you that thu
! property having been purchased and delivered
upon the ground to be used in the prosecution
i of a common enterprise by Person, Smith anc
Converse, and portions of it having been pre-
pared for the purposes of the firm, that thu
same became partnership property of the firm
decline SO to instruct you that under thos,
circumstances the property became the part
nership property of the firm; but the mer
fact of it's having been purchased by Smith ant
Q Person and placed upon the ground ultimatel,
to be put into mill, and of erecting it would
not necessarily make it mill property. If Their
| n hef he q
for the purpose of building mill, and tn
q lumber put into the building, then il became
J., part of the partnership, and it is questio,
: for you to determine. from the instructions
e this property became partnership property o
J., not" The jury must have inferred, as the
very naturally might, from this refusal an,
instruction that none of the lumber bought b.
o the plaintiffs became partnership property I'm
a sss It into was 4be actually
o ure which the firm wa
; engaged in building. That they regarded thi
as the decisive test in determining the questio
y whether it was firm property not, is obviou
20 from their verdict which evidently include
e compensation for all the lumber which was nc
/ SO actually incorporated and put in place i
lie such structures, whether it partially pre-
Is pared and fitted for such uses or not. This wa
s. clearly error. Lumber, fitted and prepared fe
y partnership use at the expense of the firm
% l ny pelng framed IoT Ine MIL, became az muc
y The property of the firm as though it had bee
u put into the building itself. Proof that til
& lumber was bought and delivered by plaintiff
Is upon the ground belonging to the members
l. the firm for the purpose of being there used i
% their joint undertaking partners, and thu
W Converse who had the personal charge and 81
!. | perv1sion of the enterprise, thereupon too
8 possession of it, and with tt
knowledge and silent acquiescence of plail
y tiffs proceeded to it as needed for any
ct the partnership purposes, whether in framin
of the will or otherwise would be sufficient alon
ut if uncont radicted, to establish the fact of
Ia conversion into partnership property of the el
=; tire lumber with the implied agreement an
-, assent of all the parties, even though it W,
~ wholly bought with the means Of the plaintiff
" The exceptions to the portion of the chars
We and the refusal consideration were we'll take
re and for this alone new trial must be grantet
m In view Of new trial, it is we'll, perhaps,
iii consider briefly the instructions which wei
e given in relation to the liability of the defen
- ant in case the property in controversy w
20 found to belong originally to plaintiffs ar
ih Converse, not as partners, but as tenants
be common, and that the latter holdir
o; the entire and actual possessic
at del ivered it to the defendant under a bill
ae sale, assuming to transfer the title to tt
ts. whole property as his own instead of his und
vided interest therein. Upon this state of fac
Y the sale from Converse to the defendant on
70 operated to pass the title to the interest whit
ITO he owned and not the shares belonging to Il
plaintiffs.
h, Merseveau VS.. Norton, Is Johns, $50.
,le By the transaction the defendant acquire
er title to the undivided interest belonging
dc Converse together with the exclusive actu
.ea possession of the entire property thus own
1ee in common.
IN His position then was that of co-tenant wi
n, plaintiffs owning undivided interest al
RI holding actual possession Of the whole comm
on property. Assuch tenant he had no right to
,at pose of the interests of his co-tenants by
bo and delivery of the entire property as his ow
=. for that would be an act in such total violati
III Ioffh oy ;oto iuI,f Of