Brodie v. Donovan

• Decision Date: 30 June 1937
• Citation: 298 Mass. 69,9 N.E.2d 386
• Parties: BRODIE v. DONOVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 69

9 N.E.2d 386

BRODIE

v.DONOVAN.

Supreme Judicial Court of Massachusetts, Essex.

June 30, 1937.

Action of replevin by Alexander H. Brodie, Jr., against Daniel G. Donovan. From an order for judgment for plaintiff, defendant appeals.

Affirmed.Appeal from Superior Court, Essex County; Williams, Judge.

E. J. McVey, of Lawrence, for appellant.

J. H. Ramsey, of Boston, for appellee.

LUMMUS, Justice.

This action of replevin for certain machinery and tools comes here by appeal from an order for judgment for the plaintiff upon the report of an auditor whose findings of fact were to be final.

The plaintiff sent the machinery and tools to the defendant at Lawrence as part of the plaintiff's contribution to the capital of a proposed corporation in which the parties were to have equal shares. The plaintiff was interested in about twenty spring service automobile repair shops, each a separate corporation, which were operated as parts of a chain called ‘The Brodie System.’ The proposed corporation was to be part of that chain. The defendant had a building, and began business without waiting for the corporation to be formed. The plaintiff knew that the business was being started, lent the defendant $500 on a personal note in order to give him the necessary cash, caused the machinery and tools to be installed, maintained through his employees ‘a close supervision over and co-operation with’ the shop in Lawrence, shipped to that shop from time to time ‘the necessary springs and other materials,’ and treated that shop ‘the same as any other branch or plant comprising The Brodie System.’ But the plaintiff handled none of the money, signed nothing, and ‘remained absolutely passive.’ The defendant managed the shop and handled the money. He testified that he considered the springs and other materials furnished from time to time by the plaintiff, as part of the ‘contribution’ of the latter to the proposed corporation. The business was unprofitable, and neither party was paid anything.

After a delay of more than a year in forming the proposed corporation, the defendant notified the plaintiff by letter that he had decided not to form any corporation. ‘It did not appear that * * * [the plaintiff] paid any particular attention to this letter, nor did it appear that there was any change in the method of doing business in Lawrence.’ Things went on as before for more than a year longer, when the defendant for the first time referred to the relationship between the parties as a ‘partnership,’ and proposed by letter to terminate it. This stirred the plaintiff to action. He came to Lawrence, and, after fruitless negotiation, brought this writ of replevin. The auditor found that the defendant had ‘regarded himself as a partner of’ the plaintiff ‘from the time that he decided not to form any corporation.’

The defence is, that the parties were partners, and the machinery and tools assets of the partnership....