Escoe v. Johnson
| Decision Date | 11 September 1964 |
| Docket Number | No. 1,No. 40796,40796,1 |
| Citation | 110 Ga.App. 252,138 S.E.2d 330 |
| Parties | Edgar ESCOE v. C. J. HONSON et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The evidence authorized the finding that the defendants were not partners as to the plaintiff; therefore the judgment overruling the motion for judgment n. o. v. and the motion for new trial on the general grounds was not error.
This case is an action by Edgar Escoe, t/a E. and E. Distribuuting company, as payee, against Clifton J. Johnson and William J. McNaughton, t/a Mac's Package Store, on four checks drawn on the account of Mac's Package Store by defendant McNaughton, which checks were dishonored by the drawee bank, the petition alleging that demand for payment thereon had been made and refused. The validity of the checks and the indebtedness represented thereby are not in dispute. Defendant Johnson, a resident of Gwinnett County, filed a plea of no partnership and defendant McNaughton, a resident of Fulton County, filed no defensive pleadings. The court directed a default verdict against the nonresident defendant, McNaughton, submitting the issue of partnership to the jury. A verdict and judgment was rendered in favor of the resident defendant, Johnson. The plaintiff filed a motion for a judgment n. o. v. and a motion for new trial on the general grounds, and to the judgment of the court in overruling these motions he excepts.
Guy B. Scott Jr., Athens, for plaintiff in error.
Stark & Stark, Homer M. Stark, Lawrenceville, Jim Hudson, Athens, for defendants in error.
'The line of demarkation between an employment and a partnership, where one of the parties contributes services rather than capital, and is merely to receive a share in the profits, is close and often depends on differences in the particular facts rather than rules of law.' McMillan v. Gilmour, 49 Ga.App. 400, 401, 175 S.E. 672 and cit.
The following evidence was adduced at the trial: The defendants jointly leased the land on which the store was situated from Mrs. Frances Crymes for a consideration of 4% of the gross receipts of the business, as appeared from a copy of the lease attached as an exhibit to the petition. Defendant Johnson testified as follows: That he was in the real estate and contracting business; that he erected the store building on the leased premises at his own expense (around $4,000); that he owned various properties in the neighborhood of the package store and had signed the lease to protect the equity he had in the building; that his agreement with the codefendant, McNaughton, was that he was to pay McNaughton $60 per week, McNaughton was to pay him 50% of the balance of the net profits and Johnson was not to be liable for the debts that McNaughton made; that, in addition to the building, he put up $1,000 to stock the store with merchandise, which he considered to be a loan, which was later repaid; that McNaughton contributed nothing but his time in the operation of the business; that he got his $1,000 for the original merchandise back plus $500 in profits and that was all; that he considered the payment of 50% of the profits to be for his investment in the building; that he had no intention of operating the business; that he didn't stay around the store; that the license was not in his name but solely in McNaughton's name, as shown by copies of the business licenses introduced in evidence; that the only person who knew he was involved in the business at all was the lessor, Mrs. Crymes; that he had never obtained a license to operate a beer store, had never had his name on a checking account where he could draw checks on the store's banking account, had never drawn a check on the store's account, had never employed a book-keeper to took after the business and had nothing at all to do with the operation of the business; that sometime in 1962 he wasn't getting anything out of the business and the State was attempting to padlock the store for nonpayment of State sales tax; that he talked the State out of closing the business, but that it was hard because he had nothing to show that he had anything to do with the business; that he had never seen the business' books prior to this time and that, after McNaughton authorized him to see...
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...whether a partnership existed as to third parties at the times in question. 68 C.J.S. (p. 475) Partnership § 57.' Escoe v. Johnson, 110 Ga.App. 252, 256, 138 S.E.2d 330, 333. The evidence being sufficient to support the findings of the court as to appellee, this court cannot reverse the jud......
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