Deutschman v. Dwyer
| Decision Date | 03 March 1916 |
| Citation | 111 N.E. 877,223 Mass. 261 |
| Parties | DEUTSCHMAN v. DWYER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Charles F. Jenney, Judge.
Action by Abraham Deutschman against William F. Dwyer and others. Report of master confirmed, and decree for plaintff, and defendant Dwyer appeals. Modified and affirmed.
The complaint alleged that the petitioner and the respondent in June or July, 1914, entered into a verbal agreement to engage in the business of selling and dealing in cigars, tobacco, confectionery, etc., as copartners, at the refectory building in Franklin Park; that petitioner contributed money; that on or about July 4, 1914, the business was opened under the respondent's name; that respondent had received and diverted various sums and sought a dissolution of the partnership, an accounting and the appointment of a receiver, etc. The defendant's answer admitted the verbal agreement and that he refused to allow petitioner to participate in the conduct of the business or the proceeds thereof, or to account therefor.
F. W. Johnson, of Boston, for appellant.
Francis P. Garland and Jacob Isaacs, both of Boston, for appellee.
The admissions in the answer coupled with the evidence amply sustain the finding of the presiding judge that the parties entered into a parol agreement which constituted a partnership as alleged in the bill. McMurtrie v. Guiler, 183 Mass. 451, 67 N. E. 358. It is plain from its terms that unless the refectory building in Franklin Park where the business of the firm was to be carried on could be leased the partnership had no reason for its existence. The very life of the enterprise was understood by each partner as dependent upon the procurement from the owner, the city of Bostion, of a concession or lease. And the further finding that the defendant through prudent negotiations obtained the lease for ‘the benefit of said partnership’ and in accordance with the partnership agreement being well supported by the evidence should stand. While it is true that the partnership was at will and the lease taken in the defendant's own name is for a fixed term, the leasehold nevertheless was held by him not as his individual property but in trust for the benefit of himself and of the plaintff. Lurie v. Pinanski, 215 Mass. 229, 231, 102 N. E. 629;Holmes v. Darling, 213 Mass. 303, 100 N. E. 611. To adopt the defendant's contention of sole ownership would be to violate...
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...213 Mass. 303, 100 N.E. 611;Lurie v. Pinanski, 215 Mass. 229, 102 N.E. 629;Arnold v. Maxwell, 223 Mass. 47, 111 N.E. 687;Deutschman v. Dwyer, 223 Mass. 261, 111 N.E. 877;H. C. Girard Co. v. Lamoureux, 227 Mass. 277, 116 N.E. 572;Cann v. Barry, Mass., 199 N.E. 905; Id., Mass., 10 N.E.2d 88. ......
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