23.08
PARTNERSHIPS – RELATIONSHIP DISPUTED – SCOPE OF AUTHROITY
[Name of defendant partner(s)] is (are) legally responsible for the actions of [name of acting partner(s)] if four things are all true. You must decide whether they all are more likely than not true. The four are as follows: 1) [Acting partner(s)] and (defendant partner(s)] agreed to work together in a business in which each would share profits and losses and, 2) [Acting partner(s)] and [defendant partner(s)] contributed property, money, knowledge, skills, services, or something else that would help the business and, 3) [Acting partner(s)] and [defendant partner(s)] each had the right to some voice in the direction and control of the business activities, whether or not they exercised this right and, 4) The [describe acts complained of by plaintiff if the case relates to agency authority of partner] [acts you have found to be negligent and the legal cause of plaintiff's (damage) (injury) (loss) (harm)] were done by [acting partner(s)] for the business and were agreed to by [defendant partner(s)] or were done during the ordinary course of the business in which (he) and [defendant partner(s)] were working together.
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If you decide that all four of these things are more likely than not true, then the law holds (names of all partners) responsible for the actions of (acting partner). If you decide otherwise, [defendant partner(s)] (is) (are) not legally responsible for the actions of (acting partner). Use Note One of the Introductory Instructions, 21.01A through 21.01D, should be used at the outset of a case. Basic contracts instructions (Instruction 24) or torts instructions (Article 03) will be needed also. This instruction should be added if a partnership relationship or the fact of a joint venture is admitted or established as a matter of law, Instruction 23.09 should be given. Comment Instruction 23.08 is intended to be used for instructing juries on the joint liability of partners and joint ventures. This combination is possible due to the fact that partners and joint venturers share the same partnership type liability with the only distinction being that the limited representation authority of joint venturers corresponds to the generally narrower purpose of the joint venture. Most of the case support for this instruction arises in the joint venture context. For the foregoing reason, however, it should be valid support in the partnership context as well. AS 32.05.010(a) (1962) provides a brief definition of partnership: "a partnership is an association of two or more persons to carry on as co-owners a business for profit." AS 32.05.080 (1962) describes the liability of a partnership for the wrongful acts or omissions of a partner: Sec. 32.05.080. Liability of partnership for wrongful acts or omissions of partner. Where, by a wrongful act or omission of a partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss or injury is caused to a person not a partner in the partnership, or a penalty is incurred, the partnership is liable for the loss or injury to the same extent as the partner so acting or omitting to act. (§ 28 1-25 ACLA 1949).
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In Northern Lights Motel, Inc. v. Sweaney, 561 P.2d 1176 (Alaska 1977) the Alaska Supreme Court discussed the definition of a joint venture. The court explained: A joint venture has been defined as "an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skills, and knowledge." State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 672 (1946). The joint venture may be established without any formal agreement between the parties; it may be implied from the facts or circumstances of the case. Id. Although each venturer need not exercise actual physical control of the instrumentalities used in the enterprise each must have a legal right to some voice in the direction and control of the enterprise. Murphy v. Keating, 204 Minn. 269, 283 N.W. 389, 392-93 (1939). Northern Lights Motel, Inc. v. Sweaney, 561 P.2d at 1187. In a more recent case the Alaska court cited the following as some of the requirements for finding that a joint venture exists: a) b) c) d) e) f) A contribution by the parties of money, property, effort, knowledge, skill, or other asset to a common undertaking; A joint property interest in the subject matter of the venture; A right of mutual control or management of the enterprise; Expectation of profit, or the presence of 'adventure,' as it is sometimes called; A right to participate in the profits; Most usually, limitation of the objective to a single undertaking or ad hoc enterprise. (footnotes omitted)
Nicholas v. Moore, 570 P.2d 178 (Alaska 1977). (citing 2 Williston on Contracts, § 318A at 563-64 3d ed. W. Jaegor 1959). Instruction 23.08 is consistent with these cases.
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The Alaska court has also held that the question whether parties entered into and acted in accordance with an oral joint venture agreement whereby they were to assume certain responsibilities and share all profits and losses is a question of fact for the jury where conflicting evidence is present. L. E. Spitzer Co., Inc. v. Barron, 581 P.2d 213 (Alaska 1978). The liability of a new partner for past partnership debt is limited to his interest in the partnership property when he has not agreed to a special contract of assumption. See, AS 32.05. 120: 32.05.360(g), and Coleman v. Lofgren, 593 P.2d 632 (Alaska 1979).
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