Gillispie v. Bohling
| Citation | 186 N.W. 85,107 Neb. 357 |
| Decision Date | 21 December 1921 |
| Docket Number | 21693 |
| Parties | ROY C. GILLISPIE, APPELLANT, v. AUGUST W. BOHLING ET AL., APPELLEES |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Nemaha county: JOHN B. RAPER JUDGE. Affirmed.
AFFIRMED.
Lambert & Armstrong, for appellant.
Kelligar & Ferneau and Ernest F. Armstrong, contra.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ WAKELEY, District Judge.
Appellant brought this action in the district court against Bohling and Whitlow. The object thereof was to recover for a broken leg and other injuries sustained by him on July 16, 1919, while oiling a threshing machine, operated by the defendant Whitlow, on the farm of one Alfred Rogge. Gillispie's claim was based upon the alleged negligence of Whitlow in starting the engine, operating the thresher, without warning to the plaintiff. It is claimed that the defendants were partners in the operation of the machine and in threshing grain in Nemaha county in 1919, and, as partners in this enterprise, liable to appellant for his injuries sustained.
Upon the conclusion of plaintiff's evidence, Bohling moved for a directed verdict, for the reason that the evidence adduced wholly failed to prove the existence of a partnership between Bohling and Whitlow in the conduct of the threshing business out of which appellant's injuries arose, and that there was no evidence to sustain a verdict against Bohling, should one be rendered. This motion the court sustained, and thereafter, in his instructions, instructed the jury to return a verdict for Bohling.
The case proceeded against defendant Whitlow, and, as to his liability, was submitted to the jury, who returned a verdict against him for $ 1,000 and costs. The plaintiff made a motion for a new trial as against Bohling, from the denial of which the plaintiff appealed. Neither party has appealed from the judgment against Whitlow. We are therefore concerned with the single question as to whether or not the facts disclosed make Bohling and Whitlow liable as partners.
Bohling had purchased for $ 5,000, and on July 10, 1919, was the owner of, a certain Port Huron threshing machine. He entered into a verbal arrangement with Whitlow with respect to the machine and threshing jobs which Whitlow might be able to obtain. The arrangement was, in substance, this: Bohling owned the thresher and furnished it to the defendant Whitlow. He also furnished the oil and coal to operate it, and defrayed any breakage occurring. For this, he was to receive from Whitlow 65 per cent. of the earnings of the machine, or, as often reiterated in the testimony, 65 per cent. of what the machine made. Whitlow, on his part, was to have the use of the machine, to take charge of it, do whatever threshing he might obtain, employ and pay all necessary help, and take his own compensation out of the remaining 35 per cent. Bohling in no respect managed, or controlled, or directed the operation of the machine, or contracted with those having their grain threshed. He was not present when appellant was injured. He was present several times to see that the machine was working properly, and, at Whitlow's request, collected some of the threshing bills. He also suggested to Whitlow the names of several persons whose work he (Whitlow) might obtain.
It is apparent from the evidence that whether the earnings or profits or what the thresher "made" were to be gross or net, the division thereof in the proportion of 65 and 35 was to be a compensation or payment to the respective parties for what each did; to Bohling, for the use of the machine; to Whitlow, for doing the actual work; that there was no community of profits as such, but that the compensation of each was defined and measured by a certain specified portion of the earnings or of the profits of the venture.
That the receiving of a certain portion or percentage of earnings or profits of an enterprise as compensation, or in return for an article furnished for a particular venture, does not in any respect make the parties thereto partners, or create a partnership liability, has been held by this court in a number of cases, some of them presenting facts very much like those in the case at bar. Hurst v. Hayden Bros., 94 Neb. 704; Whitney v. Gretna State Bank, 50 Neb. 438, 69 N.W. 933; Garrett v. Republican Publishing Co., 61 Neb. 541, 85 N.W. 537; Agnew v. Montgomery, 72 Neb. 9, 99 N.W. 820; Waggoner v. First Nat. Bank, 43 Neb. 84, 61 N.W. 112.
In Whitney v. Gretna State Bank, supra, the court said ...
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