Coens v. Marousis

• Decision Date: 03 January 1923
• Docket Number: 188
• Citation: 275 Pa. 478,119 A. 549
• Parties: Coens, Appellant, v. Marousis
• Court: Pennsylvania Supreme Court

119 A. 549

275 Pa. 478

Coens, Appellant, v. Marousis

No. 188

Supreme Court of Pennsylvania

January 3, 1923

Argued October 3, 1922

Appeal, No. 188, Oct. T., 1922, by plaintiff, from order of C.P. Lawrence Co., Sept. T., 1918, No. 36, refusing to take off nonsuit, in case of James Coens v. Speer Marousis. Reversed.

Assumpsit for services on quantum meruit. Before EMERY, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to remove. Plaintiff appealed.

Error assigned was refusal to take off nonsuit, quoting order.

The judgment is reversed and a venire facias de novo is awarded.

Clyde Gibson, of Hugus & Gibson, with him Thos. W. Dickey, and Robert White, of Clark & White, for appellant. -- Where one employed to render services has fully completed his part of the contract, he may recover on a quantum meruit: Phila v. Tripple, 230 Pa. 480; Thole v. Martino, 56 Pa.Super. 371; Brown v. Foster, 51 Pa. 165; Wilson Co. v. Reighard, 230 Pa. 141; White v. Tomkins, 52 Pa. 363; Phillips v. Allegheny Car Co., 82 Pa. 368.

An agreement between parties to become partners at a future time will not make them such: Martin v. Baird, 175 Pa. 540; Rice v. Shuman, 43 Pa. 37; Irwin v. Bidwell, 72 Pa. 244; Beaver v. Slane, 271 Pa. 317.

Richard F. Dana, with him James A. Chambers, for appellee. -- There was an agreement of partnership: Purviance v. McClintee, 6 S. & R. 258; Gregg Twp. v. Twp., 2 Watts 342; Bradly v. Jennings, 201 Pa. 473; Gibb's Est., 157 Pa. 59; Kaufmann v. Kaufmann, 222 Pa. 58; Crow v. Green, 111 Pa. 637.

A party cannot maintain two inconsistent actions or claims for the same right: Potts' App., 5 Pa. 500.

Whether an estoppel results from established facts, is a question for the determination of the court: Lewis v. Carstairs, 5 W. & S. 205; Keating v. Orne, 77 Pa. 89; Cox v. Rogers, 77 Pa. 160.

Before MOSCHZISKER, C.J., WALLING, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Plaintiff brought this action to recover the value of his services as manager of a shoeshine parlor. Defendant, having secured rooms in New Castle, Pa., equipped them with furniture and a stock of goods suitable for conducting such business. He then solicited Coens, the plaintiff, to manage it under an agreement that, after the receipts from the business should repay the cost of the original investment, maintenance, and the board and room of plaintiff and defendant, plaintiff, who was to receive no compensation for his services meanwhile other than board and room, was to be given a half interest in the business. Coens conducted the place under this arrangement for a period of twenty months, when defendant requested him to take charge of another business for a brief time. Thereafter defendant was repeatedly requested to make settlement. This he failed to do; no adjustment of plaintiff's claim was ever reached, and he was refused the interest that had been agreed upon. Later, defendant sold this business to plaintiff for the sum of $1,800, and the bill of sale described the property as being owned in its entirety by defendant. When the sale was negotiated, plaintiff demanded a settlement of his claim, and from this record it appears that at no time thereafter did he waive it in his dealings with defendant. He now sues on the breach of agreement, and claims compensation in quantum meruit for the services performed. The court below, after hearing plaintiff's case, directed a nonsuit for the reason that the cause of action concerned the relations of partners: Crow v. Green et al., 111 Pa. 637, 642.

Whether a partnership existed must be found from the terms of the agreement. A partnership relation may be created where one gives money or effects and the other labor or skill, under an agreement for a proportionate division of profits and losses (Purviance v. McClintee, 6 S. & R. 258, 261; Gregg Twp. v. Half Moon Twp., 2 Watts 342, 343; Bradly v. Jennings, 201 Pa. 473, 474; Gibbs's Est., 157 Pa. 59, 70); but where the agreement contemplates the formation of a partnership at some future time, as in this case, and the entire capital is contributed by one of the parties, the other furnishing his services free until such time as the former is reimbursed from the profits, when the latter is to be given an interest in the business, it is evident no partnership is intended until these events occur. Persons who have entered into a contract to become partners at some future time, or upon the happening of some future contingency, do not become partners until the agreed time has arrived, or the contingency has happened: Martin v. Baird, 175 Pa. 540, 554. A mere agreement to form one does not of itself create a partnership; nor does the advancement by one party of his agreed share of the capital. The entire agreement must be considered with all the attending circumstances: 30 Cyc. 358, 359; Irwin v. Bidwell, 72 Pa. 244; Beaver v. Slane, 271 Pa. 317, 321. Appellee's citations are instances where the partnership existed...