
    No. 1359.
    Charles D. Hamilton v. J. H. Eimer & Co.
    Where a party advertises for the purchase of cotton in the name of a well-known commercial firm, and proclaims himself a member thereof, the presumption is that all cotton purchased by him as suoh is for the benefit of the firm.
    Where a number of bales of cotton has been purchased, to be paid for at a fixed rate per pound on delivery, the risk falls on the purchaser from the moment of the delivery of the bales at the place agreed upon.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.
    
      D. 8. Byron, for plaintiff and appellant.
    
      Roselius <& Philips, for defendants and appellees.
    
      Brief for plaintiff and appellant.
    
    
      * * * It is immaterial, so far as the liability of J. H. Eimer & Co. is concerned, whether Joseph Lang was their agent at Natchez or their partner; in either case they are liable to plaintiff. That he was one or the other is made as certain by the evidence as it ever can be in such cases, where there is not an instrument in writing, in which the functions and character of the party, as agent or partner, is clearly expressed.
    But we believe the evidence justifies beyond a doubt the conclusion, that so far as the business transacted at Natchez was concerned, Lang was a partner. It is true, Borhman says he never was a partner. We do not pretend that he was a general partner. Partnership, in a particular ease, is a question of law and evidence; and Mr. Borhman’s opinion is not of much value in such matters — for speaking of Wessel, he says: “Wesselwas sent up there to purchase cotton, and to ship it to New Orleans; whether this implies he was an agent, witness does not know.” Lang was to share in the net profits. This is one of the principal tests of partnership. It is made expressly so by the Civil Code. See Arts. 2772, 80, 82, 84, 85.
    Art. 2782 says: “It is of the essence of this contract that a profit is contemplated, ftnd that each of the parties is to partake therein.” With this doctrine of the Code agree all writers on commercial law. See Story on Partnership, paragraphs 54, 55, 56, 57 and 58; Kent’s Com., vol. 3, marginal pages 21 to 25 inclusive.
    Mr. Chancellor Kent says: “ To be a partner, one must have such an interest in the profits as will entitle him to an account, and give him a specific lien or preference in payment over other creditors.
    In the case of Robertson v. BeLazard, 4 Bob. 314, the Court says: “ The moment it is shown that for a limited period, and in relation to a particular branch of commerce they were to buy and sell on joint account, and participate in the profits, they become thereby, as to third person, partners in relation to that trade. There may be cases in which in point of fact the parties are not partners inter se, and yet are held liable as such toward third persons dealing with one of them.”
    This language is clear and specific, and pertinent to this case, for here the parties engaged for a limited period, in a particular branch of trade, and they were to share in the profits; and the plaintiff dealt with one of them.
    
      But there is another principle of law which makes parties partners, as to third persons, when they are not so inter se; and that is, when they hold themselves out to the world as such. This principle of law is elementary.
    Mr. justice Story says at $ 64, already quoted: “ This doctrine turns upon no peculiar principles of municipal jurisprudence, but is founded in the enlarged principles of natural law and justice ex equo ei bono; for wherever one of two innocent persons must suffer from a false confidence or trust reposed'in a third, he who has been the cause of that false confidence or trust, and is to be benefitted by it, ought to suffer rather than the other.”
    In the case of McDonald v. Millaudon, 5 La. 408, the Court says: “If parties hold themselves out to the world as partners, they are bound as partners by their acts, no matter what may be the agreement between themselves.”
    In this case, Lang held himself out as a partner, and was so considered at Natchez. Campbell Marsh, who was a clerk of the house at Natchez, says that he was introduced to Lang in the office of Wessel, as a member of the firm of J. H. Eimer & Co. The name of J. H. Eimer & Co. over the door, the notice in the Courier, brought to the knowledge of Mr. Eimer, shortly after its publication, and continued until after Lang had left the country, in which Mr. Lang is virtually announced as a partner, bind the house of J. H. Eimer & Co., as much as though each member of the house had joined personally in its publication.
    The same reasoning applies if Joseph Lang is to be regarded as the agent of J. H. Eimer & Co. See Story on Agency, 441 to 446 inclusive.
    As already stated, this is the only point raised in the case. The purchase and delivery of the cotton is not contested. The proof of it will be found at pages 30 and 33 inclusive. William Wells was in' the employment of Lang. The cotton, when delivered at Grand Gulf, was at Lang’s risk. William Ryker, at pages 41 and 42, says he was employed about the month of March or April, 1864, to purchase cotton; and he went to Grand Gulf and purchased some seventy bales of cotton, and had it delivered at Grand Gulf, when it was at Lang’s risk.
    The testimony discloses that Lang purchased of plaintiff other lots of cotton, which were paid for; and these eleven bales would also have been paid for, probably, had not Lang got into difficulty with the Federal authorities at Natchez; and after his release, deemed it prudent to leave the country; and now these defendants are disposed to take advantage of Lang’s absence, to avoid a just claim, which is equally binding upon all parties, both in law and equity.
    
      Brief for defendants and appellees.
    
    
      * * The first question to be considered is, did Lang purchase the cotton for account of J. H. Eimer & Go.?
    It is shown by. the testimony of William Wells, one of the plaintiffs’ own witnesses, p. 31, that the cotton in question was sold by Hamilton to Lang, individually. He says. “ On one occasion I was present when Mr. Lang and Mr. Hamilton were bargaining for cotton. Mr. Hamilton agreed to sell cotton to said Lang as much as he could deliver; Mr. Lang agreeing to take the risk of the cotton after being delivered on the river bank, at Grand Gulf, under the protection of the gunboats. Mr. Hamilton sold Mr. Lang eleven bales cotton, during the month of April, or thereabouts; the cotton was to be delivered as soon as possible, and it was delivered on the bank as agreed upon, the night following; the price of said cotton was fifty cents per pound.” He also states that Lang was to give the captain of the gunboat ¡¡¡>5 per bale to protect it; he further says: “ Some fifteen or twenty days after the eleven bales of cotton mentioned above as having been delivered on the bank of the river, Mr. Hamilton came down to Natchez to have a settlement with Mr. Lang; after they had a conference and came down stairs, I met Mr. Lang, and asked him if he had paid Mr. Hamilton for the eleven bales of cotton, and he answered that he had pnt that off until he could sea something more about what had become of them.”
    Thus it is seen that the transaction took place between Hamilton and Lang, and that the claim against J. H. Eimer <fc Co. is an after-thought.
    Nothing shows that the defendants had anything to do with this cotton; indeed it is not proved that it was delivered to Lang.
    II. — It is alleged that the cotton was sold at fifty cents a pound; there is no evidence that it was weighed; it was therefore at the risk of the plaintiff. C. C. 2-133.
   Htman, O. J.

Plaintiff sued to recover from defendants, a commercii partnership in New Orleans, the price of eleven bales of cotton, weighi, 3,905 pounds, which he alleged he sold and delivered to them in April. 1861, at 50 cents per pound. In his petition he claimed interest on price.

He alleged that the purchase of the cotton from him was effected by-Joseph Lang, acting therein on behalf of defendants.

Defendants put at issue, by a general denial, all the facts alleged by plaintiff.

Judgment was rendered in favor of defendants, and plaintiff has appealed.

The evidence shows that defendants had a house established in Natchez, Miss., for the purpose of purchasing cotton; that Charles Wessel was their agent at Natchez, and acted as such for them in the purchase of cotton till February, 1861, when Joseph Lang took charge of defendants’ business at that place.

On the 26th of that month, Lang advertised in a newspaper published at Natchez, styled “The Natchez Courier,” this notice:

“ Notice. — On and after this date, Mr. Charles W'essel is no longer onr agent; any business will in future be transacted in this city by our Mr. Joseph Lang. J. H. Etheb & Co.”

“Liberal cash advances on cotton consignments to my house, in New Orleans. Joseph Lang.”

That a copy of this notice was received by defendants shortly after its first publication, to which they made no objection; that Lang bought cotton, made various shipments of the same to defendants, drew drafts on them, and had a certain share of the net profits of his purchases of cotton as his compensation.

The evidence also shows that Lang bought from plaintiff eleven bales of cotton, weighing at least 3,905 pounds, for which he agreed to give 60 cents a pound; that plaintiff was to deliver them in April, 1861, at Grand Gulf, on the Mississippi river; that after their delivery they were to be at Lang’s risk, and that plaintiff delivered the same according to contract. What became of the cotton, after its delivery, the evidence does not satisfactorily show.

We are satisfied, from the evidence, that Lang had authority to buy the cotton for defendants, but they contend that it is not proved that he bought the cotton for them.

The business of Lang at Natchez, was to buy cotton for the partnership of O'. H. Eimer & Oo., of which he advertised himself as being a partner, and the presumption is that his purchases ox cotton Avere made for the firm,

Defendants further contend, that as there is not evidence that the cotton was weighed to them, it was at plaintiff’s risk.

We do not so hold. It is not essential to the contract of sale of produce by weight, that its risk should be on the vendor until it is weighed.

The risk may be assumed by the vendee, as the. law does not forbid him to assume it.

It is decreed that the judgment of the District Court be annulled, avoided and reversed.

It is further decreed, that plaintiff recover of defendants, J. H. Eimer & Co., the sum of one thousand nine hundred and fifty-two dollars and fifty cents, with interest thereon, at the rate of five per cent, per annum, from the 30th day of April, 1804, till paid, and the costs of suit in both courts.  