Hoile v. York , 27 Wis. 209 ( 1870 )

Colé, J.

We think the contract set out in the complaint contemplated that there should be a settlement or statement rendered by the defendant of the transactions growing out of the first adventure on the 31st of March, 1869.. The plaintiff furnished the $275 to be used by the defendant in the purchase of meat, poultry, or such other articles as his judgment might dictate, and to be sold as opportunity might offer, and the profits arising from such sales were to be equally divided on that day. There could, of course, be no division of profits unless there was some statement rendered by the defendant of the purchases and sales made with this money. And the refusal of the defendant to render such an account or statement of these transactions was a sufficient justification for the plaintiff’s declining to perfect the partnership. He very well might decline to go on and perfect the partnership in view of the refusal of the defendant to perform the original agreement, and make a statement of the purchases and sales made with the $275, as that contract required him to do.

And this brings us to the question whether the preliminary agreement constituted the parties to it partners as between themselves. And upon that question we agree with the counsel for the plaintiff, that the contract did not constitute them partners. The intention of the parties, as gathered from the language of the contract, is to control in the matter. And, looking at the various clauses of the contract, it appears to us that the preliminary arrangement amounted merely to this: That the plaintiff was to furnish two hundred and seventy-five dollars, to be used by the defendant in the purchase of meat, poultry, and such other articles as his judgment might dictate, until the 31st of March, 1869; the plaintiff to have one-half of the profits of the business for the use of his money, and the defendant to have the other half as a compensation for his services. The defendant would hold the relation of a servant or agent of the plaintiff in respect to all the transactions which took place under the contract. He was to buy and sell certain things purchased with the plaintiff’s money, and as compensation for his services was to receive one-half the profits of the business. If no profits were realized, then the defendant would receive no pay for his services, and the plaintiff would get nothing for the use of his money. This seems to have been the real object and intention of the parties in making this contract. It is quite analogous to the arrangements entered into in Hitchings v. Ellis, 12 Gray, 449, and Lamb v. Grover, 47 Barb. 317, and in many other cases of a like character found in the books. The interest of third parties is not in any way involved, the sole question being whether the parties are partners inter sese. And we think they were not. The agreement clearly provides for a partnership after April 1, 1869. It stipulates that after that time the plaintiff was to be “ received into full partnership ” of the business, upon contributing the further sum of $525. Had the defendant performed the contract on his part, and rendered a statement of the purchases and sales made with the $275, he could then have insisted upon the plaintiff’s fulfilling it. But as he has seen fit to disregard its stipulations, the plaintiff had the right to abandon it altogether. This view of the contract disposes of all the questions arising upon the record.

By the Court. — The judgment of the circuit court is affirmed.