Street v. Thompson , 229 Ill. 613 ( 1907 )

Upon the record as it is here presented, appellee and appellants must be regarded as agreeing that appellee was an employee and not a partner of appellants.

It is first urged that as appellee was not a partner he had an adequate remedy at law for the recovery of the compensation due him. His compensation was to consist, in part, of a share of the profits of the business of the firm. To ascertain the amount of these profits it was necessary that the partnership accounts be adjusted. A court of equity therefore has jurisdiction. Channon v.Stewart, 103 Ill. 541.

Two of the three members of the firm of R. R. Street Co. received salaries under a provision of the partnership contract of that firm by which it was agreed that one of the members of that firm should not be required to devote any time or personal service to the business of the co-partnership; that the other two should devote all their time to that business, and that each of these two should receive, "from time to time, such a salary for his services as should be mutually agreed upon between the said three partners" before a division of profits should be made. Appellee had no knowledge or notice of this fact at the time he entered into the contract under which he claims. Appellants contend that a portion of the salary of one of the partners of the firm of R. R. Street Co. should be deducted from the profits of the power generation department, and that appellee is entitled to but one-half of the profits of that department remaining after that deduction is made. The amount so sought to be subtracted is such proportion of the salary of that partner as is commensurate with the time he gave to that department of the business of the firm. In the absence of a contract providing that the partners shall receive salaries no such salaries are payable out of the proceeds of the firm business. Neither partner "is entitled to charge for his time or skill in conducting the business of the firm as no agreement was made that there should be any such charges, and according to the law governing partnerships the presumption is that each is required to use his skill, time and labor for the promotion of the interest of the firm, unless it is otherwise provided by agreement of the parties." (Ligare v. Peacock, 109 Ill. 94.) Such being the presumption, we think appellee cannot equitably be charged with any portion of the salary to which one of the partners was entitled by virtue of the provision in the co-partnership agreement of the firm of R. R. Street Co. which was not disclosed to him at the time of the execution of his contract. As was well said by the Appellate Court in its opinion in this case, referring to the contract signed by appellee: "In this agreement a salary was provided for complainant, and if it was intended that one should be allowed any one of the Streets, that should also have been expressed."

Appellee was entitled to no part of the profits resulting from sales made from the department in which he was interested, to "dealers." Certain profits were realized from sales made to the Chicago Brick Machinery Company, the Aultman Company and the Allis-Chalmers Company. Appellants contend that these companies were dealers, and that the profits were not of those in which appellee could rightfully share. In the original statements made by appellants and furnished to appellee, showing the condition of his account, these profits were included as a part of those for which appellants must account. After the litigation was under way appellants set up a claim to the whole of these profits, on the theory that they resulted from sales to "dealers." We have examined the evidence on this subject and are satisfied that appellants' first view of the matter is the correct one.

It is then urged that there are variances between the amended bill and the proofs. The variances pointed out are not material. For example, it is said that the amended bill alleges that the appellee was entitled to one-half of the profits of the power generation department while the proof shows that he was entitled to one-half of the net profits. Such a variance, under the circumstances of this case, is merely verbal, and not substantial or material.

Appellee argues that the circuit court erred in not allowing him interest at five percentum per annum upon the amount found due him, from the time when that amount should have been paid. He has not questioned the judgment of the Appellate Court by the assignment of cross-errors, and we are therefore precluded from considering this proposition.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.