Barry v. Kern

• Citation: 184 Wis. 266,199 N.W. 77
• Parties: BARRY v. KERN.
• Decision Date: 03 June 1924
• Court: United States State Supreme Court of Wisconsin

184 Wis. 266

199 N.W. 77

BARRY

v.KERN.

Supreme Court of Wisconsin.

June 3, 1924.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Alma Barry against Robert J. Kern, who interposed a counterclaim. From an order overruling demurrer to counterclaim, plaintiff appeals. Affirmed, and cause remanded.

The defendant claims a certain interest in two lots in the city of Milwaukee, of which plaintiff owns the record title, and, in order to give notice to the public of his interest, he filed an affidavit setting same forth, in the office of the register of deeds of Milwaukee county. Plaintiff brings this action to clear her title from the claim of the defendant, and the defendant interposed an equitable counterclaim in which he alleges that the parties hereto entered into a contract which contained, in substance, recitals and agreements as follows, to wit: A recital that plaintiff is the owner of the two lots mentioned; that the defendant is a carpenter contractor; that, in consideration of mutual promises and of an equal division of the net profits derived from the sale of said lots after the erection and completion of a dwelling house upon each of said lots, the parties agreed as follows: Defendant agreed to build and complete with all due and reasonable speed, said two dwelling houses in accordance with plans to be agreed upon; to furnish plans and specifications; to furnish all materials and labor at cost; to superintend the construction and completion of the buildings; and to co-operate with the plaintiff in an effort to obtain a satisfactory purchaser or purchasers. The plaintiff agreed to execute a mortgage for $4,500 upon each of said lots, the proceeds whereof were to be devoted to the payment of the necessary cost of material and labor in the erection and construction of the buildings; that upon the sale of the property the plaintiff was, first, to receive the sum of $800 for each lot, as the agreed value thereof, with interest thereon; second, each party was to be reimbursed thereafter for the amount of cash advanced and used for the purpose of defraying any expenses connected with the erection and construction of said buildings; and that, when all claims and demands of whatsoever nature and description incurred or arising out of the erection of such buildings should have been paid, the balance of the proceeds should be divided equally between the parties as net profits.

It is also alleged in the counterclaim that the defendant has fully performed the agreement on his part, and that he has advanced in cash, in order to defray the expenses, the sum of $404.43 for the building upon one of the lots, and the sum of $416.41 for the building upon the other lot; that the lots in question were readily salable, and that a sale could be easily made at a profit to the parties hereto, and that the plaintiff has refused to make sale of such premises; that plaintiff has leased the premises to tenants, collected the rents and profits, and has refused to account to the defendant for any part of the same. Defendant prays for an accounting and for judgment awarding him his properinterest in the premises, and for such other and further relief as to the court may appear just and equitable.

The court having overruled the plaintiff's demurrer, an appeal to this court was taken. Further facts will be referred to in the opinion.

Aaron B. Rosenthal, of Milwaukee, for appellant.

Charles J. Weaver, of Milwaukee, for respondent.

DOERFLER, J. (after stating the facts as above).

[1][2] The defendant claims that under the contract the parties were engaged in a joint adventure. Plaintiff contends that the contract merely created the relationship of principal and agent, or master and servant, and not a joint adventure.

Essentially there is little difference between a partnership and a joint...