512 MAY v. EWAN. [169 Therefore, we must regard this finding a evidence of the fact it recites, and as sufficient to sustain the judgment. Roth Tobacco Co: v. Layton Department Store, 163 Ark. 221. It follows that the judgment must be affirmed. MAY v. EWAN. Opinion delivered October 12, 1925. 1. LANDLORD AND TENANT—PAYMENT OF RENT OUT OF COTTON RAISED ON LAND.—Under a contract of lease which provided that the lessee should pay 40 pounds of lint cotton per acre as rent, "to be from the first picking from said lands," the rent was payable in any event, and not upon condition that the stipulated amoun of cotton should be raised on the land. 2. PARTNERSHIP—AUTHORITY OF PARTNER—JURY QUESTION.—Where a partnership between A an B was formed for the purpose of cultivating A's lands, and B leased and cultivated other lands of a third person, an instruction that if B engaged in leasing and renting such other lands with A's knowledge, the lessor would be justified in assuming that a lease executed by B in the fifm name was authorized by A, was erroneous, as the question whether B acted within the apparent scope of his authority in leasing the additional lands was a question for the jury. 3. PARTNERSHIP—SCOPE OF PARTNER'S AUTHORITY.—In order for an act of a partner to bind the partnership, it must be shown that the act is authorized by the partnership agreement, or that it is usual in carrying on the firm's business. Appeal from Phillips Circuit Court ; E. D. Robertson, Judge ; reversed in part. W. G. Dinning, Sheffield & Coates and P. R. An-drews, for appellant. Lee & Moore and Moore, Walker & Moore, for appellee. SMITH, J. Appellee, who was the plaintiff below, brought this suit to recover a sum ,alleged to be due him as rent on a tract of land in Monroe County for the Year 1923. The suit was brought against W. W. May and Van G. Patrick as partners and against II. C. Pope, and judg-
ARK.] MAY V. EWAN. 513 ment was recovered against all three defendants, and they have all appealed. - • May owned a. large tract .of land in Phillips County, and in 1908 he 'formed . a. copartnership with'Patrick, who. was :liiS nephew,--to clear and- .cultivate these lands. In connection; with these operations, • a commissary was operated -frOm which the tenants . on the land were furnished with neceSsary sUpplies. Patrick furnished certain tenantS • on other lands in which • May -was not interested. An agreement-to dissolve this copartnership was entered into between May and Patrick in the fall of 1919, but the agreement does not appear to have ' been consummated until about February 20, 1920, *at which time May bold his lands and his entire interest' in the partnership to 'another . partnership which, was formed Tor the purpose of buying May out. As May s, expressed it, the sale Was a ` :` walk : out? ' proposition. • • • • The new partnership to which May sold Out was composed of Patrick, T. J. Mott and J: D. May, and that partnership -oPerated 'under the firm • name of Mott, Patrick & May. -• In 'some manner Mott and J. D. May retired-from this neW partnership and Patrick 'continued its . business.. After:appellant May had sold out to this new partnership, he apPears to have had nothing further to do. with the oPerations Of the new . partnership.. On the 13th day-Of August; 1919, a:pPellee -entered into a. written contract whereby he leased his cleared lands for a period of five years. This Contract was signed by • appellee; as.landlord, and by H: .C. Pope and by May & Patrick hy Van 0-: Patrick, as tenants. 'This contract was ackrioWledged August '13, 1922, by Patrick before a notary public, and in the certificate of acknowledgment it was - reeited that he had executed' the contract as one Of the partners in the firm of May & Patrick, and that he had authority from said partnership so to do. The con: tract provided that the land should be . surveyed, 'arid that •his survey should be conclusive as : to the:acreage. The survey was made, and • -according 'to it there were 900 acres of the cleared 'land. The leaSe Contract was
514 MAY V. EWAN. [169 amended on January 20, 1920, to recite that fact, and it was again signed by the same parties. Me lease contract contained the following agreement in regard to rent: "The parties of the second . part agree to pay as annual rental for the said cleared lands forty (40) pounds of lint cotton per acre, said lint cotton to be picked, ginned, baled and delivered to the said party of the first part by the said parties of the, second part at.the railroad station at Postelle, Arkansas; and to be from the first picking of cotton from said lands, same to be. delivered as soon as same is picked, ginned and baled." The rent was paid appellee' according to the terms of the contract for the years. 1920, 1921 and 1922, but was not fully paid for the year 1923, and this suit was brought to recover the balance due. . • Separate an g Wers were filed by Patrick and Pope and by May. Patrick & Pope defended upon the ground that they had ,delivered to appellee all of the cotton grown upon the place except five bales which were erroneously sold, and as to the value thereof they offered tO confess judgment. They had tendered -to appellee a quantity of hay raised on the land in 1923, and they alleged that this hay, together with the cotton delivered and the five bales for the value of which they offered to confess judgment, constituted the entire crop grown on the land, and they insist that they are not liable further.. Appellee declined to accept the hay on the ground that the rent was payable in cotton, and that, if cotton was not delivered in payment' of rent, he was entitled to the value of the cotton which the contract • required to be delivered. Appellants Patrick and Pope insist that, inasmuch as the contract provided that the rent shotld be paid "from the first picking of cotton from said lands,. sante to be delivered as soon as same is picked and giimed and baled," they calmot be held liable for the value of any cotton not grown, and they asked instructions — which the court refused to give —so declaring the law.
ARK. MAY •4). EWAN. 515 These instructions were properly refused. 'It is true the contract referred to cotton grown on the land, and it 'is 'also true that enough cotton was not grown to pay the rent... But we think • it was clearly contemplated :by the [parties that enough cotton would be grown to pay the rent, for the contract provideS that the rent should be paid "from the first picking of cotton." The contract . contained no . icondition that the rent should be payable provided enough cotton was grown to do o, and we think the fair interpretation of the . contract is that forty pounds of lint-cotton should 'be paid for each acre of the land.,,; and . was 'to be paid from the cottOn first 'picked, hut was payable in any event.. • • No other 'errOr is assigned on the appeal of Patrick ; and Pope,. and the judgment against them is therefore affirmed. .` • The appeal of May presents more difficult questions. As we . haVe said, the testimony shows—and we think beyond qUestion—that the partnership of May & Patrick was 'dissolved not later than' February,' 1920, and May had . nothing to. do with the cultivation of appellees' land and derived no profit or advantage therefrom at any time, and May was not advised of this contract until the fall of 1922 'or the . spring • of 1923. May concedes; however, that, after being so advised, he did not inform appel-lee that. he was not a partner of Patrick and Was not interested 'in the lease, and 'the court submitted to' .tho jury the .question of 'ratifiCation under instructions which are not questioned except that it is insisted that ther-was no testimony in the case which warranted the submission of that issue. We think, however, that it appears from the facts already mentioned and other facts which will'he hereafter recited that . the testimony was sufficient to warrant the submission of this question to the jury. Giving the testimony which tends to . support the verdict its highest probative' value,. it may be further summarized as follows. The profits of the commissary were to be equally divided . between May and Patrick. and a volume of business exceeding twenty thousand dol-
516 MAY V. EWAN. [169 lars per year was done in the commissary.. ln . 1914 May found the .partnership -was not getting ,on satisfaCtorily, and he took, charge of it, : but in . 1916 turned it ;back to Patrick to be operated under the original partners]iip agreement. Patrick rented. a farm known-as, the Nelson place and . certain .other• small farms daring this time, and t9ok these contracts in the name of the. firm.. These contracts were from . year to- Tear, but. it 'appears, that when May was advised . of these contracts he repudiated them and reproved Patrick Tor making them and deelined to have anything to do with them or to make:any settlement. regarding them,: . . •and Patrick personally settled_ with his respectiye landlords... May , ,admitted that he made . no inquiry about the, : operations of Patrick, and when he learned in the fall . of,1922 or the spring of 1923 that Patrick had executed a contract in his name as a partner of Patrick he did not advise appellee that this had .been done without authority, and the 1923 crop was thereafter planted and grown. .May. residedin Missis-sippi; and appellee in Monroe County, Arkansas, and they never had any- communication of any kind , and had ,never met until the trial of the case in the court, below. • As• may be , readily _surmised, Patrick became . one of tbe most important :witnesses" in the case. He testified that May had nothing to do with the contract, and-was not advised of it until after he (Patrick) had operated under it 1fOr "several years.' He testified that che. - considered the :contract a splendid one for himself and Pope when it was made, and that they rendered no. account to May of. theirprofits and operations under it for.the years 1920, 1921 and 1922. -* Over May's objection the court gave an instruction numbered 3 reading • as . follows , : "You are 'instructed that, though you may believe from the evidence that the partnership of May & Patrick was formed' solely for the purpose of develoning - a large body of land belonging to the . said W. W. May, if you find from a preponderance of. the evidence that, after the forming of said partnership, it engaged in the business of general merchandising,
ARK ] MAY V. EWAN. 517 of doing a furnishing' business, and . engaged in the leasing and 'renting -Of lands, 'with the knowledge of the'said W: W. May,'and with the knowledge 'of' the plaintiff -in this case, then the Plaintiff would be juStifi.ed in assuming' that the lease eXecuted ' this 'Ca g e; signed May,& Patrick; . bY 'Van ft Patrick; . was' 'sd• executed With the authority . of the'said W. W: May, and under ,such stances the said W. W. May would be bouna by the said • A general .objection , was made to this 'instruction, .and the sPecific objection was made that it was a. charge 'on •the weight' and the sufficiency of . the testimony, and 'this objection appears to be well taken... • • It ' will' be observed' that this InstrUctiOn 'deals -with 'the question Of primary , liability, and not with that of 'ratification, and s ' tells the jury that,' if • the' facts redite'd 'are: true, appellee . was warranted-in asSuming that Pat-rick • had 'the authority' to' make the 'contraCt' and 'to 'find for 'appellee,' although' the' finding :Was also 'Made-that Patrick'had no Snell authOrity: • , • • ' • 'The circuraStances • enumerated' were 'proper 'matters • to be Considered by the . jitry,.-but the weight •• to be attached to them and- the inferences• to be drawn fi'om them were questions for the jury, and not for the 'court. • Withont 'setting out the: testi g nony' in 'further detail, We think it very clearly appears 'that the . execution of 'the 'lease by Patrick in* the name . of . 'May & Patrick was beyond the scope of the businesS of , the partnership, and the questions (a) whether -that act was within the apparent scope of, his:authority as a partner, and (b) whether there' was a ratification of Patrick's unauthorized,act, 'were properly questions 'for the 'jury. • •It is familiar laW -ale the' liability of o . ne' . partner for the acts Of his-copartner is founded on the' principles of agency, and that the'power of one . parther to' act as agentfor the principal and'to bind it• by.bis acts as 'such is limited. tO transactions' Within the stope'of the partnershiP business, and-that one partner is not bound by the unalithorized . . acts 'of • a coPartner in : a' matter not
518 MAY V. EWAN. [169 within the apparent scope of the business of the partnership. Barnett V. McClain, 153 Ark. 325. Each partner acts as principal for himself and as agent for his copart-ners, and each partner is authorized to transact the whole business for the firm, and when he so acts all are bound, but, like other agents, he binds his principal only when he acts within the scope or the apparent scope of his authority as such. At § 95 of the chapter on Partnership in 20 R C. L., page 884, it is said: "Strictly speaking, the power of a partner to act as agent is limited to tranSactions within the scope of the partnership business, and one partner is not bound by the unauthorized acts of a copartner in a matter not within the apparent scope of the business of the partnership. When a partnership is limited to a particular trade or business, one partner cannot bind his copartner by any contract not relating to such trade or business, or by any contract made after such business is concluded. Similarly, if the purposes of a partnership are limited and special, third persons cannot obtain credit on the faith of the firm in relation to a matter foreign to its objects; though, if the objects of the association are general, the power to bind may be equally general." In § 96 of the same chapter, page 885, it was further said: "In order to determine the apparent scope of the authority of a partner, recourse may frequently be had to past transactions indicating a custom or course of dealing peculiar to the firm in question or to the general custom of parties and firms similarly, situated and circumstanced. And the rule has 'been laid down that, in order for an act of a partner to be binding on the partnership, it must be shown affirmatively that such acts are authorized by the partnership agreement, or that they are usual in carrying on the kind of business carried on by the firm. The authority for each transaction may be implied from the nature of the business according to the usual a i nd ordinary course in which it is carried on by those engaged in it in the locality which is its
seat, or as reasonably necessary or fit for its successful prosecution, and third persons may be presumed to have knowledge of the limited character of a business from circumstances connected with the business of the firm." It was the contention of May that the eole business of the partnership which had at one time existed between himself and Patrick was to clear and cultivate the lands owned by May, and that Patrick's authoritrwas limited to such matters as were incident thereto, but the instruction set out above tells the jury that, even though they found this to be true, May would be bound by Patrick's acts if they found the enumerated circumstances also to be true. By so doing the court took from the jury the decision of the question of fact whether the acts of Pat-rick which were beyond the scope of his 'actual authority were within the apparent scope of his authority. This was a question . of fact for the jury, and for the error in giving instruction numbered 3 the judgment against May must be• reVersed, and it is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.