Boardman v. Close , 44 Iowa 428 ( 1876 )

Servers, Ch. J.

The exceptions to the report of the referee relate solely to the question whether the plaintiff was entitled to any compensation, over and above his share of the profits as provided in the articles of partnership, for his personal services rendered the firm. The finding of facts in relation thereto, by the referee, is as follows:

“ I further find, with regard to the work done by Boardman, that during the time for which compensation is claimed, he was engaged in no other business than that of the firm. He kept the books of account, weighed in stock, weighed stock out, assisted to load and unload cars, assisted to load and unload straw and other stock, at times, from wagons, assisted to bale paper and mark the same for shipment, and perhaps some few other things; and, further, that he drew against consignments, paid bills, paid the hands off, made out bills of goods shipped, and forwarded the same to consignees, received and receipted for freights, etc., and necessarily visited Iowa City quite frequently, for the purpose of attending to such business. Also, that he was not at the mill during said period, on an average, more than half the time, during the usual working time (that is, from 7 a. m. to 6 p. m.), exclusive of the noon recess of one hour.

“ I also find that M. T. Close was engaged at his mill in Iowa City, and did but little -work of the concern, and that no fault was ever found about it, or claim for payment made by Boardman, until the dissolution.

“I also find that the entire business done by the firm amounted, in round numbers, to about $30,000 during the time M. T. Close was a member of the firm, to-wit: From about August 6th, 1872, until Sept. 1st, 1873. [The pay claimed by Boardman is $50.00 per month from the firm during that period.]

“ Also, that the book shows that, at times, during the. sickness or other necessary absence of either of the members of the firm, during the lifetime of S. M. Close, they were in the habit of charging such absentee with loss of time, at the rate of $50.00 per month; but I do not find that such course of dealing was known to M. T. Olose until after his purchase.”

The evidence before the referee is not before us. Therefore, in determining the question presented, we can only take into consideration the articles of partnership and the finding of facts made by the referee.

i vARTNBRterms aveefn writing. In Levi v. Karrick, 13 Iowa, 344, the evidence was before the court, and upon that the court determined the partner was entitled to compensation. From such evidence 00m’t found and determined that an Agreement to pay could be fairly and justly implied from the course of business between the partners. We are unable to come to any such conclusion in the present case. Nothing of the kind can be implied from the articles. Looking alone thereto the implication is the other way.

In Levi v. Karrick, supra, the terms and conditions of the partnership existed only in parol, and what such terms and condititions were we are not informed. Having in the present case reduced the terms of the partnernship to writing, the strong presumption is that, if any such thing had been contemplated, it would be found in the written agreement. Its absence, therefore, creates the presumption that the parties did not so intend.

The referee finds that during the lifetime of S. M.-Close, the partners were in the habit of charging each other for absent time. This is the reverse of paying for services performed. The defendant, however, had no knowledge even of this fact. As the defendant was absent the most of the time, why did not the plaintiff, during the existence of the partnership, continue the rule previously adopted and charge him for the time he was absent? We do not believe this circumstance has any bearing 'whatever on the question before us.

3_. gerL nerTburden’ of proof. The general rule undoubtedly is, “ That there is an implied obligation on every partner to exercise due diligence and skill, and to devote his services and labor for the promotion of the common benefit of the concern; p. f0p0ws that he must do this without reward or compensation, unless it be expressly stipulated for between the partners, as it well may be under peculiar circumstances.”

It is true, the defendant did but “ little work for the concern,” and yet, for aught we know, that little may have been just as valuable as that performed by the plaintiff. The plaintiff should prove and establish facts that justify the en-grafting an exception on the general rule. The circumstance that no such claim Was made until after the dissolution is entitled to some weight, and also the further fact that the plaintiff was not at the mill more than half his time. If, when thus absent, he was engaged in the business of the firm, he should have shown it.

The judgment of the Circuit Court must be

Affirmed.