Weare v. Magee , 234 Mass. 234 ( 1919 )

Crosby, J.

This is an action brought against the defendants Magee, Clark, Rodolphe L. Agassiz and Max Agassiz to recover for milk and produce furnished by the plaintiff to the Passaconaway InU, York Beach, Maine. Magee and Clark have been defaulted. The question before us is, whether the evidence is sufficient to charge the other defendants with liability.

The plaintiff sought to show that the Agassiz were engaged as partners with Magee and Clark in operating the hotel. There was evidence that the defendants Agassiz each loaned Magee $3,750 to assist him in obtaining a lease and option to purchase the hotel property, with the understanding that the money was to be paid back; and that if the property were purchased and a corporation formed each had the privilege of taking stock in the corporation to the amount of his loan. The provision in the agreement that if the option was not exercised any surplus of profits was to be divided between the Agassiz, Clark and Magee, is not evidence of a partnership. Holmes v. Old Colony Railroad, 5 Gray, 58. LaMont v. Fullam, 133 Mass. 583. Nantasket Beach Steamboat Co. v. Shea, 182 Mass. 147. Estabrook v. Woods, 192 Mass. 499, 502.

No partnership agreement between the Agassiz and the other defendants or either of them is shown, nor does it appear that either of the Agassiz ever had anything whatever to do with the business of conducting the hotel or held themselves out as having any interest in the enterprise. As a finding for the plaintiff would not have been warranted, the entry must be

Judgment for the defendants Rodolphe L. Agassiz and Max Agassiz on the verdict.