Estabrook v. Woods

• Decision Date: 05 September 1906
• Citation: 192 Mass. 499,78 N.E. 538
• Parties: ESTABROOK et al. v. WOODS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 499

78 N.E. 538

ESTABROOK et al. v. WOODS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 5, 1906

COUNSEL

Hutchins & Wheeler, for plaintiffs.

George Chandler Coit, for defendants.

OPINION

KNOWLTON C.J.

The principal question in this case is whether the defendant Woods is liable as a partner with the defendant Bigelow for goods sold by the plaintiffs, for the price of which this suit is brought. Woods was the party of the first part and Bigelow the party of the second part in a contract in writing, the substantive portions of which are as follows:

'1. The party of the first part agrees to loan party of the second part two hundred dollars for three years, with interest payable semi-annually at the rate of six per cent per annum, said loan to be secured by a chattel mortgage of the stock of goods and fixtures in a cigar store to be located in the building at the southerly corner of Pemberton Square and Tremont street in Boston, in the county of Suffolk and said commonwealth.

'2. The party of the first part agrees to secure for the party of the second part a stock of cigars and tobacco to an amount of not more than two hundred and fifty dollars (and said stock of goods may at the option of party of the first part, be obtained for said store by said party of the first part, by credit or by cash payments); and upon payments by the party of the first part for such goods, he shall be allowed by said party of the second part, interest at the rate of six per cent. per annum on such payments, until the same are repaid by the party of the second part, and the same shall be secured by the mortgage above mentioned.

'3. This agreement is conditioned upon the party of the first part being able to secure for the party of the second part, a lease for three years of a store to be constructed at the corner of the said premises, at a yearly rental of four hundred and eighty dollars, and shall guarantee said lease.

'4. The party of the second part agrees to conduct a cigar and tobacco store in said premises, and to devote his time and attention to the conduct of the business, and he agrees hereby that he will not engage in any other business or occupation until after six o'clock p. m. during the term of said lease, or so long as the party of the first part shall be liable thereon.

'5. He shall, from the proceeds of the business, first pay the expenses incurred in the conduct of the business and maintain the stock of goods; second, pay interest due party of the first part; third, take on account of his services, for his own use, any balance not exceeding the sum of twenty dollars per week; fourth, pay one-half of the remaining balance--that is the net profit--to party of the first part, and keep the remaining one-half for his own use. * * * That is, it is agreed after July first, 1902, whenever the party of the second part shall have repaid all sums advanced by the party of the first part, that thereupon and thereafter, in lieu of said one-half of the net proceeds as hereinbefore provided, the party of the second part shall pay the party of the first part one-quarter of the net profits until the expiration of three years from the date of the lease of said premises.'

Property was obtained to fit up a cigar store in accordance with this contract, and it was mortgaged by Bigelow to Woods to secure the payment of a note of $533.53, the consideration of which was the liability of Bigelow to Woods under the contract.

There was no evidence that the defendant Woods ever held himself out to the plaintiffs or any one else as a partner of Bigelow, and the question is whether this contract made him a partner in the business carried on under it. That depends upon the actual relation of Woods to the business. If two persons connected in business have such rights and interests as to make them in fact parthers,...