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Statement of the Case.

It was further found by the court below, that the steamboats Carrie V. Kountz, Katie P. Kountz, Henry C. Yeager, and Mollie Moore "were employed by the respective transportation companies, to which they were conveyed, under the direction of the officers of said companies, in carrying freight and passengers on the Mississippi and its tributaries," the Kountz Line corporation being the "common agent" of said companies, and charging the latter "for the services rendered to them respectively, from one hundred to one hundred and fifty dollars per trip." Its office, as well as the business offices of the transportation companies, was in the same room on its wharf-boat at St. Louis. It-the Kountz Line corporation-collected the dues of the transportation companies, keeping a separate account with each, and paying to each the earnings of its own steamboat. By means of advertisements in newspapers, placards, hand bills, and cards, the Kountz Line corporation advertised the "Kountz Line," setting forth the advantages offered by the boats of that line, their low rates of freight, &c., and "announced that it was ready to contract for the carrying of goods and passengers by the Kountz Line boats." In those advertisements, placards, and hand bills, usually one, but sometimes two or more of the boats belonging to the transportation companies were mentioned "as belonging to said Kountz Line." The Kountz Line corporation made out bills of freight upon blanks headed "Kountz Line, St. Louis and New Orleans Packet," the bills being "in the name of the particular steamboat to which the freight was due, and the dray tickets of shippers indicating on what boat the goods were to be shipped." The bills of lading were usually signed "John W. King, ag't Kountz Line, St. Louis," the signature thereto being made by a stamp; but the bills were sometimes signed by the clerk of the steamboat on which the goods were shipped. Some of the bills of lading for the produce and merchandise shipped May 21, 1880, on the Yeager, recited "that the same were received from John W. King on board the steamboat Henry C. Yeager, to be delivered to the consignee at New Orleans. In witness whereof, the master, clerk, or agent of said boat

Statement of the Case.

hath affirmed to three bills of lading," &c., and were signed, some of them, "John W. King, ag't Kountz Line, St. Louis," and some by E. B. McPherson, clerk. Others of said bills of lading recited the shipping of produce by other shippers on board the Henry C. Yeager, and were signed by King in the manner aforesaid, and others by E. B. McPherson, clerk.

In order that the boats belonging to said transportation companies might have freight, the Kountz Line corporation sometimes purchased produce and merchandise for the purpose of its being shipped upon them, the sum paid for such produce and merchandise being charged to the particular company in whose interest the purchase was made. The goods so purchased were usually bought and paid for by the Kountz Line corporation. Against such shipments it made drafts, in its own name, on the consignees. All moneys, whether received for freight carried by said several steamboats or for goods shipped and sold for their account, were remitted to Wm. J. Kountz or John W. King, as the agents of said Kountz Line, the cost of the goods being charged to the individual boat on which they were shipped. After deducting costs and charges, the net proceeds, although "deposited in bank to the credit of said Kountz Line, were placed in the books of account to the credit of the boat carrying the goods, and were her separate profits."

The Circuit Court found that the Kountz Line and the said transportation companies "owned no property in common," and that "there was no community of profits or property between said companies, including the Kountz Line, or any two or more of them." But it also found that "none of said steamboats were ever advertised by the name of the corporations that owned them," and that from the date of the incorporation of said transportation companies to the date of the said shipment on the Henry C. Yeager, "none of said transportation companies ever transacted any commercial business by their several and respective names, but the same was done by the name of the Kountz Line, or in the name of the individual boats belonging to said transportation companies." Such, in substance, was the case made by the finding of facts.

Argument for Appellees.

Mr. John A. Campbell and Mr. O. B. Sansum for appellants. Mr. Charles B. Singleton and Mr. Richard H. Browne for appellees.

The question presented is: Did the District and Circuit Courts err, in refusing to hold these defendants jointly liable?

Let us take the great authority, Lindley, as to the kind of evidence to establish and prove the existence of an alleged or quasi-partnership, for no other sort is alleged as to these defendants.

The first is agreements in writing, and deeds showing the right to share profits.

Admissions, such as: advertisements, prospectuses, &c., containing the names of the alleged partners, and names over doors and on carts; Answers in chancery containing admissions; Bills, circulars, invoices, containing the names of the alleged partners; Bills of Exchange, drafts of agreements, letters and memoranda, showing an intention to give a share of profits, coupled with evidence that such intention was acted on. In what particular do the findings of the court bring this cause within the meaning and spirit of the evidence. here required?

There was no division of profits. This cannot be maintained, even as to the earnings of the Kountz Line, for no lawyer has ever been absurd enough to claim that the profits divided among the shareholders of a corporation, according to the shares each held, made any sort of partnership between them.

There was no admission found by the court, either parol or in writing. The advertisements did not name these various transportation companies; only the boats which were the property of the respective companies were named.

Was anybody misled or deceived by supposing that these boats were partners? The earnings of each were credited to each, and none of the others shared in them. The Kountz Line had earnings. Its stockholders got them. If any boat made earnings, they belonged to her (or the transportation company which owned her) alone.

Argument for Appellees.

There are a number of English cases which overrule the general principle laid down in Waugh v. Carver, 2 H. Bl. 235. In Cox v. Hickman, 8 H. L. Cas. 268, the case of Waugh v. Carver was questioned, and the ratio decidendi in, that case establishes that it does not contain a correct statement of the law of England. The learned editor of the 5th edition of Story on Partnership, § 47, note 2, referring to Waugh v. Carver, declares that the doctrine of that case, after being disapproved by all text writers, reluctantly followed by courts, and broken in upon by "subtle exceptions and limitations, has been finally overthrown in England," and adds,

"perhaps there is no other instance in commercial law where so many confessedly hard decisions have been based on so obvious a fallacy."

Lindley, in commenting upon the recent decisions Holme v. Hammond, L. R. 7, Ex. 218; Mollwo, March & Co. v. Court of Wards, L. R. 4, P. C. 419, and others, says, at page 42, ed. of 1881, "the strong tendency of the above decisions is to establish the doctrine that no person who does not hold himself out as a partner is liable to third persons for the acts of persons whose profits he shares, unless he and they are really partners inter se; and it is, perhaps, not going too far to say that this is now the law."

But the libellants may say, we admit there was no joint property, no joint fund, no joint losses, no joint profits, no arrangement to share loss or profit, yet you held yourselves out as partners in this carrying trade, and therefore you are jointly liable as you had a common agent, a common office, and employed these boats as the Kountz Line.

Now, the Kountz Line was simply the name of the agent of all these transportation companies or boats. It was a corporate body and had a corporate name, and took no part in the business carried on, except to do the business for each of the boats, keeping the accounts and profits of each separate and distinct. It was a designation.

It is true that Kountz and King were the president and secretary, respectively, of the Kountz Line, and were the officers likewise, when the loss occurred, of the several transportation

Argument for Appellees.

companies, but we know of no reason in law or morals why the same persons may not be the executive officers of two or more corporations at the same time, nor why the acts done by them for the benefit of one corporation should not enure solely to the benefit of that corporation, and not to the others. They did not represent the same interests, when they acted for the Kountz Line, as they did when they acted for the M. Moore Transportation Company, nor did they represent the H. C. Yeager Transportation Company when they bought goods to make freight for the K. P. Kountz Transportation Company, for the fact is found by the Circuit Court, that “the stock in no two of said companies was held by the same persons."

It seems a strange conclusion to say, that boats running under a common name, “Green Line," for example, although in a common trade, should be held to constitute a partnership, when their business was kept entirely distinct, as it was in this case.

There are cases very analogous to the one under consideration, though not entirely parallel in all respects; but they are so nearly the same, that they go far to sustain the District and Circuit Courts in their conclusions of law. See Illinois Central Railroad v. Irwin, 72 Ill. 452; Briggs v. Vanderbilt, 19 Barb. 222; Bonsteel v. Vanderbilt, 21 Barb. 26.

But we say, also, that there was no evidence offered in this cause, nor any finding to the effect, that the shippers of the goods insured, or the libellants who insured them, ever were misled by any representations of the Kountz Line, or any of these transportation companies.

There was not a scintilla of evidence to show that either or any of the shippers ever considered or were induced to believe that there was any partnership in the matter. There was not a word of testimony to show that there were any considerations inducing any one of them to ship on the Henry C. Yeager, because she was advertised as belonging to the Kountz Line. There was no support to the position that they were induced to ship, or trust, or rely upon the Kountz Line as a partnership, nor to show that any credit was given by them

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