Braley v. Goddard , 49 Me. 115 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

It appears that the parties entered into a written contract, by which certain timber, standing upon the land described therein, was to be cut and taken to market by means of the services of the plaintiff. The defendant alone had acquired the right to cut the timber, and he only was accountable to the owner of the same. He was, also, to furnish the teams, money and supplies, to carry through the operation, and to receive six per cent, a year, return on every dollar furnished, in addition to its cost, which, with six dollars for every thousand feet stumpage, was agreed to be deducted from the first proceeds which he should receive from the sales of the lumber.

. The plaintiff was to give his whole personal attention to the cutting, hauling and driving the lumber, having the entire charge of the same, till its arrival at the city of St. John.

The profits of the operation were to be shared between the parties, one quarter to the plaintiff and three quarters to the defendant.

If the plaintiff should wish to saw his fourth part of the lumber, the defendant was to furnish mills for that' purpose, on certain specified terms. But, if he should prefer to sell his portion of the lumber, he was entitled to. do so, on the condition, that if he could sell it for cash or satisfactory paper, .the defendant was entitled to take it at the same price, or permit the entire lot to be disposed of at that price; or, if the party, who might wish to purchase, did not desire to take the entire lot, the plaintiff could sell his interest if the defendant declined taking it, provided the party wishing to purchase, and the pay offered, should be satisfactory to the defendant, and not otherwise; the defendant holding the lumber under his control till the supplies, money and stump-age should be paid, at all events.

The plaintiff had not the unqualified right to dispose of the portion of lumber belonging to him, by the contract, after all the prior claims should be discharged; and no authority existed in him to dispose of any further portion on any terms whatever. This is entirely inconsistent with the rights of a member of a co-partnership, having the power "to make contracts, incur liabilities, manage the whole business and dispose of the whole property of the partnership, for its purposes, in the same manner and with the same power as all the partners could when acting together.” Dwinel v. Stone, 30 Maine, 384.

The nonsuit was directed on the ground that the contract made tbe parties tlxereto a legal partnership, and it was erroneous. ’ Exceptions sustained—

Nonsuit removed — and .New trial granted.

Rice, Cutting, May and Kent, JJ., concurred. Appleton, J., noil-concurred.