Pettibone v. Tuttle ( 1923 )

BNeeshaw, List. J.:

This is an action brought by the plaintiff for an accounting of an alleged partnership and for the dissolution of the partnership. The complaint in the action alleges that there was an agreement of partnership and asks for the dissolution of the same and for an accounting of partnership- property and a sale of the property acquired for partnership purposes. The action was tried on the theory that there was a partnership.

In the evidence it appears that plaintiff, some twenty years ago, was engaged in the real estate business at Dawson. Defendant came to Dawson and procured plaintiff’s assistance in the handling of defendant’s affairs. They became concerned in the handling of real estate, particularly railroad lands. Defendant proposed to plaintiff that in certain lands he would furnish the money and plaintiff would negotiate sales;. that such proposition thus handled should be considered on a profit basis by dividing the profits equally between the patties. In accordance with this understanding, as plaintiff asserts, certain land in Kidder county was purchased by defendant, thereafter sold, and the profits equally divided between the partners; also certain land west of the Missouri river known as Black Butte township. Then defendant purchased some eighteen sections of land at $4.50 per acre. The purchase price was paid by defendant and title to the lands taken in the defendant’s name. Concerning this land it is the ¡plaintiff’s contention that, pursuant to the arrangement, he was entitled to share in one fourth of the profits that should be derived in the handling of this real estate. It appeal’s that this land was purchased in the years 1905 and 1906. It has never been sold. During the years that have .since elapsed, the title has stood in defendant’s name; he has paid the taxes and collected the rentals. It is the claim of the • plaintiff that these lands should be sold and that he should be accorded the right, pursuant to the agreement, to participate in the profits to be derived upon such sale. It is clear upon the record that the lands as such, during the years, were never treated as partnership real estate. The particular question involved is whether or not there was a partnership relation existing concerning profits that might be realized upon the sale of such lands.

The learned trial court, after hearing all the evidence in the case, made his findings of fact and conclusions of law and found as a fact that the plaintiff had failed to establish the material allegations of the complaint and that the evidence establishes the fact that no partnership existed between the plaintiff and defendant as set forth in the plaintiff’s complaint and that plaintiff has wholly failed to sustain the cause of action set forth in the complaint, and as a conclusion of law found that the defendant is entitled to a dismissal of the action.

Judgment was duly entered on an order dismissing the action and plaintiff appeals to this court from such judgment.

The only question for consideration on this appeal is whether or not there is sufficient evidence to support the findings of the trial court. We are of the opinion that the findings axe amply supported by the evidence.

We have examined the evidence and are fully satisfied and of the opinion that there is no evidence to show that a partnership^ existed between plaintiff and defendant as alleged in the complaint and that there was a total failure of proof to establish any such partnership and that, therefore, the court did not commit error in dismissing the action.

The judgment is therefore affirmed.

BkoNsok, Ch. J., and Bibdzell, JohNsoN, and ChbistiaNSON, JJ., concur. Nuessle, J., being disqualified, did not participate, Honorable W. J. ENeeshaw, Judge of Second Judicial District, sitting in his stead.