Garrett v. Republican Pub. Co.

• Decision Date: 20 March 1901
• Citation: 85 N.W. 537,61 Neb. 541
• Parties: GARRETT v. REPUBLICAN PUB. CO. ET AL.
• Court: Nebraska Supreme Court

61 Neb. 541

85 N.W. 537

GARRETT

v.REPUBLICAN PUB. CO. ET AL.

Supreme Court of Nebraska.

March 20, 1901.

Syllabus by the Court.

1. Whether a written contract creates a partnership is to be determined by ascertaining the intention of the parties from their language.

2. Where no question of estoppel is involved, persons cannot be held to be partners despite their intention not to form that relation.

3. The right of participation in the profits of a business indicates the existence of a partnership, but actual intention is the decisive test.

4. A contract by the terms of which the owner transfers to another the exclusive use and control of property, and is to receive as rent therefor a portion of the profits arising from such use, is not a partnership contract.

Error to district court, Custer county; Grimes, Judge.

Action by E. O. Garrett against the Republican Publishing Company and another. Judgment for defendant company, and plaintiff brings error. Affirmed.Taylor Flick, for plaintiff in error.

C. L. Gutterson, A. R. Humphrey, and C. H. Holcomb, for defendant in error.

SULLIVAN, J.

This was an action by E. O. Garrett to recover damages for an alleged libel printed April 30, 1896, in the Custer County Republican, a weekly newspaper published in the city of Broken Bow. The defendants, the Republican Publishing Company, a corporation, and J. H. Chapman, filed separate answers; the former denying and the latter admitting responsibility for the defamatory article. The court held that the evidence given at the trial was insufficient to warrant a verdict against the publishing company, and sustained a motion to dismiss the case so far as it was concerned. This is the only ruling of which the plaintiff complains.

It appears from the record that the newspaper in which the libelous article appeared was at the time under the control and direction of Chapman, whose rights and authority in the premises were derived from a contract with his co-defendant, the owner of the plant. Since the case turns upon the construction of this contract, its material provisions are here set out: “This indenture, made this 1st day of October, 1895, between Republican Publishing Company, of Brokenbow, Nebraska, party of the first part, and J. H. Chapman, party of the second part, witnesseth: That the said party of the first part, in consideration of the covenants of the party of the second part hereinafter set forth, do by these presents lease to the said party of the second part the following described property, to wit: All the complete publishing outfit belonging to said first party, consisting of engine, presses, type, job-printing outfit, and all appurtenances thereunto belonging, together with the subscription list and good will of the Brokenbow Republican, to have and to hold the same to the said party of the second part from the 7th day of October, 1895, to the 1st day of November, 1896. And the said party of the second part, in consideration of the leasing of the premises as above set forth, covenants and agrees with the party of the first part to pay the said party of the first part, as rent for the same, ______ dollars, as follows, to wit: The said second party is to take full and complete charge of said publishing outfit; to edit and manage the paper in the best manner possible for best interest of all parties; to pay all expenses of every nature in connection with the management of the same, including labor; to employ only such help as may be actually necessary for the best interest of the parties hereto in conducting such business; and to retain for his services the first...