Dreyer v. Conner

• Decision Date: 26 June 1903
• Citation: 45 S.E. 371,117 Ga. 759
• Court: Georgia Supreme Court
• Parties: BRANDON & DREYER. v. CONNER et al.

45 S.E. 371

117 Ga. 759

BRANDON & DREYER.

v.CONNER et al.

Supreme Court of Georgia.

June 26, 1903.

PARTNERSHIP—WHAT CONSTITUTES.

1. Where A., who had a contract to grade a portion of a railroad, made a contract with B. by the terms of which B. was to "put in" 16 mules and harness against A.'s 6 mules and his services, and to receive one-half of the net profits of the business for the use of his mules and harness, there was a partnership between them as to third persons, although they agreed that B. was to have nothing to do with the work, and was not to be responsible for any debts.

v 1. See Partnership, vol. 38, Cent. Dig. §§ 39, 42, 43.

(Syllabus by the Court.)

Error from City Court of Macon; W. D. Nottingham, Judge.

Action by Brandon & Dreyer against F. B. Dunn and others. Judgment for piaintiffs. From an order granting defendant Conner a new trial, plaintiffs bring error. Reversed.

Hardeman, Davis, Turner & Jones, for plaintiffs in error.

Steed & Ryals, for defendants in error.

FISH, J. Brandon & Dreyer brought an action in the city court of Macon upon two promissory notes against F. B. Dunn & Conner, as a firm composed of F. B. Dunn and B. F. Conner. Conner pleaded the general issue, non est factum, and specially that "he was not and never had been a member of the firm of F. B. Dunn & Conner; that he had never held himself out as a member of said firm; that he had never incurred any liabilities under said firm name, or authorized any one else to incur liability under said firm name." The case was tried without a jury by the city court judge, who rendered a judgment in favor of the plaintiffs against F. B. Dunn & Conner and F. B. Dunn and Ben. F. Conner, as partners composing such firm. Conner made a motion for a new trial upon various grounds, which was granted by the judge "upon the sole ground that the court erred in holding and deciding that under the evidence a copartnership existed between F. B. Dunn & Conner as to the plaintiffs, Brandon & Dreyer." Thereupon the plaintiffs excepted. The question before us, therefore, is, did the court err in granting the defendant Conner a new trial upon this ground; in other words, was the original judgment, holding that, under the evidence submitted, Conner, relatively to the plaintiffs, was a partner of Dunn, demanded by the law and evidence?

Under the law of this state as laid down by previous rulings of this court, we think that the original judgment was right, and the judgment granting the new trial upon the ground specified was wrong. Whether Dunn and Conner, relatively to third persons, were partners, depends upon the contract between them. The only witness who testified as to this contract was Conner. He was introduced as a witness in his own behalf, and testified as follows: "I know F. B. Dunn. My relation to him in this matter was just this: Some time in the early summer of last year—1901—F. B. Dunn and a man named Davis, the foreman of W. J. Oliver & Co., the head contractors on the extension of the Macon, Dublin & Savannah Railroad, came to my house to see about getting some mules to help in the work of grading. I had sixteen head. Davis said to me, in Dunn's presence, that Oliver & Co., the head contractors, had sublet to F. B. Dunn * * * the choice mile of the work of grading the road; that Dunn had already obtained all the credit he needed for the work through W. J. Oliver & Co.; and that, if I would let Dunn have my sixteen mules on a share of the profits, I would get good pay for my mules. Dunn said that he had already gone to the expense of $100 in getting his subcontract for the mile of grading and in arranging for the credit he needed. * * * He figured that, if I would let him have my mules, I would get enough out of it to make a good price each day for their service. Dunn said he had three pair of mules. I agreed with Dunn to put in my sixteen mules and harness against his six mules. I was to have nothing to do with the work, and was to be responsible for nothing, and he was to pay me one-half of the net profits, after the creditors were all paid from the proceeds of the business. This was to be compensation for the service of my mules, and I was to have nothing more to do with it. I was to be responsible for nothing, and I told him I would go into it in no other way. He said he had already arranged through Oliver for all the credit he needed, and I would have nothing to do with that. * * * I never got a cent of money from that work. I never handled a single cent. Under my contract with Dunn, I was not to have anything to do with the money or the work, but he was to pay me one-half of the net profit he got out of it. * * * I never authorized Dunn to use my name at all. I never authorized him to use my name in signing those notes [the notes sued on] or any other notes. * * * I went to the work several times, and stayed down there about a week some time between the 20th of November and the 10th of December, 1901. I was anxious for the creditors to get their money, especially after I heard Dunn had been using my name. I knew I was to get nothing until the creditors were paid. I went down there about the 20th of November, when I heard that Dunn had used my name, and I did my best to help the thingthrough. I wanted the creditors to get their money. I was not responsible to them, but when I heard he had used my name I wanted them to get their money, and I went out and dug with my own hands. * * * In my contract with Dunn I put in sixteen mules and harness, and he put in six mules, and was to have charge of the work; and he had already arranged for his credit. * * * I knew I could not look after anything, for my child was sick and at the point of death. * * * I never had any control over the work or over the money, and was not to have under the contract. I was to have no control over the profits. He was to pay me one-half of the net profits for the service of my mules."

The construction which Conner placed upon the contract between himself and Dunn is immaterial, and under the law of this state in a case of this character the intention of the parties at the time the contract was entered into is likewise immaterial. Whatever may have been the intention of the parties, and whatever may have been the understanding of Conner as to the legal effect of the contract, we think that Conner's testimony shows that relatively to third persons he was a partner of Dunn. The case of Buckner v. Lee, 8 Ga. 285, is directly in point, and is, we think, decisive of the question before us. There it was held that under "an agreement between A. and B. that A. should take certain negroes of B., and work them in a blacksmith's shop, furnish all supplies, pay all expenses, and give B. one-half of the net proceeds of the shop for the use of the negroes, " they were partners as to third persons. In that case Judge Nisbet, after quoting from Story and Kent and citing other authorities, said: "It seems, then, clear that, if one is to receive a certain proportion of the profits, as one-third or one-half, as profits, he is a partner. If a certain sum is agreed to be paid out of profits, and the party does not look to that alone for payment, he is not a partner; but if the sum to be paid is not fixed, but may be increased or diminished by the amount or accidents of the business, then the receiver is a partner. [Citing many authorities.] Now, in this case the proof is that for the use of his negroes Everitt was to receive, not a. stipulated sum, but one-half the net proceeds of the shop. The amount he was to get was to be paid out of the profits, as profits, and the amount depended upon the business—its amount, management, and accidents. It would fluctuate according to the whole amount of the net profits. It was one-half after expenses were paid. There was clearly community—mutuality—as to the profits. He looked to no other source for his hire. He was entitled to an account against Lee for his interest in the concern." That covers the present case like a blanket. Changing the names of the parties to the contract, substituting mules and harness for negroes and work upon the grading of a railroad for work in a blacksmith shop, we have exactly the case now under consideration. The case of Buckner v. Lee was followed in Dalton City Co. v. Dalton Manufacturing Co., 33 Ga. 243, where it was held: "Though an agreement between two parties concerning a particular business in which real estate belonging to one of them is to be used be denominated 'a lease, ' and the fruit to the owner of such estate be called 'rent, ' yet if it appears that such fruit is to come only from the 'net profits' of the business, and is not to exceed a certain proportion of them, the parties will in law be regarded as partners." The Buckner Case was again followed in Dalton City Co. v. Hawes, 37 Ga. 115. There the company "leased to Ford their shops, etc., and he agreed to pay them rent for said property, 'for the first year a sum equal to one-half of the net profits of Ford's business, ' etc., " and it was held "that said company and Ford were partners in said business under said lease. These decisions have never been overruled, or even questioned, by this court. It is true...