Citation Numbers: 107 Ill. App. 320
Judges: Adams
Filed Date: 3/30/1903
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court.
It appears by return of the sheriff of Warren county, State of Mississippi, that he delivered to M. J. Mulvihill, secretary of the Railroad Power and Manufacturing Co., and to Samuel R. Hughes and B. W. Griffith, each a copy of notice and of the bill of complaint. A non-resident corporation can not be so served, and the service on Hughes and Griffith was not such as is authorized by section 14 of the chancery act. Therefore, none of the defendants mentioned was served by process, in contemplation of law. Schaffer is the only one of the defendants to the bill for whom an appearance has been entered or brief filed in this court, and therefore the only question to be determined is, whether the appellant can have any relief as against Schaffer. Complainant relies, and can only rely, on the alleged agreement between Schaffer and Mordaunt of February 15, 1898. That agreement, as stated in the bill, was an agreement between Schaffer and Mordaunt, and not an agreement between Schaffer and appellant. It is alleged that the agreement between Schaffer and Mordaunt was that Mordaunt, from his share of the profits, was to compensate his (Mordaunt’s) associates, and appellant alleges that he was one of Mordaunt’s associates in the enterprise. The very fact that Schaffer contracted, as alleged, with Mordaunt only, is evidence of his intention not to incur anv responsibility, so far as Mordaunt’s associates were concerned. The appellant testified that, after the so-called franchise was granted, Schaffer purchased the electric light plant, and said he was ready to go ahead with the matter, and wanted to know what the position of Mordaunt and appellant was; that appellant’s arrangement with Schaffer was, that the preliminary expenses were to be divided, and that appellant and his associates were to have one-fourth of the entire deal; that after the purchase by Schaffer of the electric light plant, a difference sprung up between Schaffer and appellant, and Schaffer said to appellant, “ You do what you can, and you can have the electric light plant for what it cost me; ” that then appellant went to Hew York and negotiated with various parties, and the negotiations failed, and then the Vicksburg parties wanted appellant to assign the franchises to Smith, and it was arranged between Smith, Mordaunt and appellant that if he would assign the franchises, he should receive one-sixteenth of the profits in the construction and the bonds and the stock, and he said he would not stand in the way, under that proposition, and assigned the franchises.
Murray F. Smith gives quite a different account both of the alleged original agreement and the agreement when appellant assigned the franchise. He testified that, by the original agreement, before the assignment to him of the franchises, Mordaunt, Mulvihill, Brennan and witness’ firm, were to have one-fourth of the profits; that when the assignment was proposed Steele claimed about $800 on account of his expenses, of which amount Schaffer refused to pay more than one-half, and that, finally, witness agreed with appellant that if he, appellant, would assign the franchise, witness would pay his said claim within thirty days after the operation of the road commenced, and would give him an equal share of any profits which witness’ firm would receive; that Schaffer was not a party to this agreement; that he, Schaffer, refused to have anything to do with the enterprise in connection with Steele, and that witness concealed from Schaffer his, witness’, agreement with Steele, as he was afraid Schaffer would not construct the road if he knew of it. Mordaunt testified that Schaffer made an arrangement with witness that witness was to have one-quarter of the profits, and witness agreed to take care of all of his associates; that Steele was one of his associates; that when Schaffer purchased the electric light plant, he asked Steele to put in an equal amount of money with him, Schaffer, which Steele said he was not prepared to do, and offered to turn over the franchise for a certain interest, which offer Schaffer declined, and said he would not go on with the matter, and told Steele he might go on with it; that Steele undertook so to do, but failed, and Schaffer said he would have nothing to do with the enterprise if Steele had any sort of connection with it, and that, after Steele assigned the franchise, Schaffer again took up the matter. Schaffer testified that he had no arrangement with any one except Mordaunt about a division of profits, and that he did not inquire or know wrho Mordaunt’s associates were. There is no evidence that any profits from the construction or' operation of the road have accrued to any one. It appears from the evidence that Mordaunt sold his interest to appellee Schaffer for $1,000.
The court was fully warranted in finding that there was no agreement between appellant and Schaffer as to any division of profits with appellant, and not only so, but that Schaffer, when a disagreement arose between him and appellant, absolutely refused to proceed any farther with the enterprise, or to have anything to do with it if appellant should be at all connected with it; and that appellant acceded to the position of Schaffer is evidenced, first, by his attempting to raise money himself to carry out the enterprise, and secondly, by his assigning the franchises to Smith, in consideration of the latter’s agreement to pay his (appellant’s) claim for expenses, and to share equally with him the profits to be received by Smith’s firm. Mordaunt, appellant’s witness, testified that appellant said, in regard to the proposed assignment to Smith, that he, appellant, would not stand in the way of the people of Vicksburg getting the road, that they had treated -him nicely, and that he was willing to sacrifice what money he had put up to help them. Mordaunt, in his cross-examination, testified, that after the franchise was assigned to Smith, Schaffer took the matter up again “ as anew matter.” On redirect, Mordaunt undertook to explain this testimony, unsuccessfully, as we think. But even though the alleged contract between Mordaunt and Schaffer was not abandoned, or ceased to be relied on by appellant, he is not entitled to any relief as against appellee Schaffer. In 2 Bindley on Partnership, Sec. 460, the author says:
“If, therefore, a partner has agreed to share his profits with a stranger, and the latter seeks an account of those profits, he should bring his action against that one partner alone, and not make the others parties,” citing cases. See also. Bates on Partnership, Sec. 167, and Moore v. Hammond, 110 Fed. Rep. 897, to the same effect.
The decree will be affirmed.