La Trobe vs. Hayward-Opinion of Court.

Hayward was entirely ignorant, and it is clear from the proofs and the admissions in the answer, that Hayward did not accede to La Trobe's construction of the letter until LaTrobe's acts induced the belief that the alterations amount ed to but little. From the proofs, it is plain that this was incorrect; that it was a material matter in the settlement, and that Hayward was ignorant, and LaTrobe possessed the information stated. From the circumstances of the case, H. would naturally rely upon any representation by LaTrobe. The rule is, that if a party undertake to make a direct representation as to a fact, even though he be mistaken as to the fact, if the other party is induced to act upon such representation, equity will relieve against the act equally as if it had been a wilful and false assertion, for the injury is the same. I Mar. Ch. Decisions, 496; 6 Gill & Johns., 54. The act of La Trobe here was more than equivalent to such a representation.

Actual fraud is not necessary, in a case of this character, to entitle the party to relief. It is not necessary that it should have been LaTrobe's purpose to get the property, omitting the cost of the alterations and extra work which he had caused to be done, in order to open the settlement.

We do not doubt that LaTrobe did not know the precise cost of the work, and his acts and language at the time of the settlement may have been the result of inadvertence. But this makes no difference. It is against conscience for the defendant, who led plaintiff into error by his acts and language, inducir.g Hayward, who relied upon them, to conclude that the alterations amounted to but little, and not to the sum which the proofs in the case establish, to insist on the fruits of the receipt in full, and this would be true under the circumstances of this case, even in the absence of the mistake of the parties in the construction of the letter of the agent. 18 Wend., 421.

If the case was reversed-if, in fact, there were no alterations, and Hayward, who had knowledge, (or if he had no

Johnston vs. Eichelberger-Statement of Case.

knowledge,) so acted as to induce the belief on the part of La Trobe that there were large alterations, and LaTrobe, who was ignorant, made a settlement or accepted Hayward's construction of the letter, and made a payment of one thousand dollars for alterations alone, would a court of equity hesitate to grant relief? We think not.

The effect of the decree in this case is to direct a sale of the premises, and an application of so much of the proceeds as is necessary to pay the plaintiff's debt, permitting the deed of conveyance to stand. This is correct.

The decree is affirmed.

ABNER D. JOHNSTON AND STEPHEN C. DEBRUHL, APPELLANTS, VS. ADAM L. EICHELBERGER, APPELLEE.

A bargains and sells to B one half of a stock of goods not then in his actual possession. B bargains to pay A one-half of the cost of the goods, and one-half of the charges incurred and to be incurred thereon. The cost and charges are to be ascertained at a future time: Held, That acts remained to be done between buyer and seller before the sale could be considered complete, and that no present right of property passed. In the same instrument containing the above bargain and sale there was an agreement between the parties to sell the stock of goods as co-partners: Held, That it was necessary that a property should pass to the vendee before such partnership could exist inter se, and that the vendor had a right to insist upon payment for the goods before the vendee acquired an interest as partner: Held further, That acts which may be attributed to common courtesy and to the confidence which generally exists between persons who have agreed to enter into the intimate confidential relation of partners, should not be held to be a waiver of those conditions necessary to be performed before that relation is to exist under the

contract.

This is an appeal from a final decree rendered in the Circuit for Marion county. Adam L. Eichelberger filed his bill

Johnston vs. Eichelberger-Argument of Counsel.

in that court setting up a co-partnership between himself and Abner D. Johnston, in the business of selling certain goods and merchandise, which Johnston had before that time purchased in the city of New York. At the date of the alleged agreement, which was in writing, the goods had not arrived at the point where the business was to be carried on. The defendant, Johnston, in his answer, denied the existence of any co-partnership in the goods, insisting that under the terms of the agreement payment for one-half of the goods was a condition precedent to the acquisition of an interest by Eichelberger. After replication there was a reference to a master, a statement of an account, and a final decree for a balance found to be due by Johnston to Eichelberger. From this decree, an appeal was prosecuted to this Court. The principal ground upon which a reversal of this decree is sought, is, that at no time did a co-partnership in the stock of goods exist. This is all of the case made by the pleadings which is examined by this Court. The allegations of the pleadings, and the evidence having a bearing upon this point, is fully stated in the opinion of the court.

S. M. G. Gary, with whom was A. J. Peeler, for appellants.

Johnston and Eichelberger were never partners inter se. Payment for one-half of the stock was a condition precedent to the existence of that relation, and there was no payment.

Looking to the agreement, we find that Johnston had bought a stock of goods in New York, which were to be shipped to Ocala. That Johnston sells to Eichelberger onehalf of said stock in consideration of certain covenants. Eichelberger agrees to pay one-half the original cost. price, together with one-half the cost and charges that may or shall be expended in transporting said goods to Ocala. The parties agree to sell said goods in Ocala as equal copartners, &c. To divide profits and bear losses equally.

Johnston vs. Eichelberger-Argument of Counsel.

The first point to be noticed is, that this was an agreement, not for a general partnership to carry on the business of merchants, but a limited partnership for a particular business, to-wit: the sale of a particular stock of goods in the town of Ocala; a partnership without limit as to duration, and dissolvable at pleasure.

The second point to be noticed is, that the agreement was an entirety; that the sale and the partnership were inseparable. Johnston was not selling Eichelberger a half-interest in the stock which was to be severed or taken away from the rest of the stock; Eichelberger's interest was to be per my et per tout. The purpose of the agreement was to enable Johnston to realize on half the stock of goods, and at the same time secure a partner; the sale creating the partnership and the partnership being the inducement to the sale.

The third point to be noticed is, that though the language employed in the agreement seems to impute a partnership in praesenti, yet, that looking to the whole agreement, the partnership was to commence in futuro.

The goods at the time were in New York, and were to be shipped to Ocala; the partnership business could not actually begin until the arrival of the goods; the joint ownership and community of interest could not attach until their arrival. The payment of the money for half the stock, &c., by Eichelberger and his admission to the rights of a partner were to be concurrent.

The fourth point to be noticed is, that Eichelberger could not, under the agreement, claim the rights of a partner until he had complied, or offered to comply, with the covenant on his part of payment. Nothing but a payment, unless this had been waived, would have made him a partner. Even an offer to pay, and a refusal to accept on the part of Johnston, would have simply placed Eichelberger in an attitude to sue at law for a breach of the covenant, or to file his bill in equity for a specific performance; and a bill for specific performance would have been unavailing in this case, be

Johnston vs. Eichelberger-Argument of Counsel.

cause to entitle a party to this remedy the partnership should be for some definite term. Fry on Spec. Per., 504. With reference to the word "pay" in this agreement, we hold that the parties in its use meant Eichelberger should pay to Johnston in money, or by Johnston's consent, something equivalent thereto, for half the stock of goods, &c., and that the word" pay," in its technical signification, precludes the idea of a cross demand or set off. 19 Ark., 230; 3 Sandf. Ch. Rep., 305. The fact that the parties did not show by their agreement that payment was to be made in something other than money, is evidence that money was intended. "Expressio unius exclusio alterios."

No time being fixed in the agreement, the presumption is that the payment was to be made by Eichelberger concurrently with being admitted as a partner. It is not pretended by Eichelberger that he paid to Johnston the amount of one-half the price of the goods, or that he contributed anything to the purchase of said stock of goods.

It only remains now to inquire upon this point whether the covenants on the part of Eichelberger, which we have seen were not performed, were waived by the parties. We insist that the acts and declarations of Johnston, disclosed by the evidence, do not establish a waiver of the original agreement to pay, and the substitution of a new agreement to extend credit. The answer expressly affirms that defendant always insisted upon payment, and the bill itself admits it. We think there can be no doubt here. In support of our position that the acts proved do not constitute a waiver, we cite Bird vs. Hamilton, Walker's Chy., 361.

L'Engle & McConnell for Appellee.

The answer of the appellant, Johnston, admits that a written agreement of sale and partnership was made between himself and respondent, but claims that it was conditional, and this claim is attempted to be sustained by parol testimony.