Hansen v. Bogan

• Decision Date: 11 December 1928
• Citation: 127 Or. 399,272 P. 668
• Parties: HANSEN v. BOGAN.
• Court: Oregon Supreme Court

272 P. 668

127 Or. 399

HANSEN v. BOGAN.

Supreme Court of Oregon

December 11, 1928

Department 2.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Suit by Henry C. Hansen against Albert L. Bogan. Decree for plaintiff, and defendant appeals. Affirmed.

This is an appeal from a decree wherein it was "adjudged and decreed that the plaintiff * * * recover of and from the defendant * * * the sum of $490, together with plaintiff's costs and disbursements." On his appeal the defendant asserts that this is not a cause for equitable jurisdiction, and that, if equity has jurisdiction to decide the case under the facts as disclosed by the evidence, the defendant is entitled to judgment.

J. A Burleigh, of Enterprise (Dey, Hampson & Nelson and Herbert L Swett, all of Portland, on the brief), for appellant.

George W. Cherry, of Enterprise (Daniel Boyd, of Los Angeles, Cal., on the brief), for respondent.

BROWN J.

The parties hereto are dealers in live stock. In his complaint the plaintiff avers that for several years immediately prior to the filing thereof he had been engaged in buying and selling live stock in Wallowa county, Oregon, and during that time had become widely acquainted with the stock raisers in that county. He asserts that on July 28, 1927, he entered into an agreement with the defendant to purchase beef and stock cattle for shipment to Portland, Or., and for sale on the local market, under the terms of which the plaintiff agreed to supply an automobile and devote his time to that business, and the defendant agreed to furnish the money for the purchase of such live stock, the net profits or proceeds of all transactions to be divided equally between plaintiff and defendant; that, in pursuance thereof, plaintiff and defendant purchased stock and beef cattle for shipment to Portland and for local sale, and, in accordance with their arrangement, the profits derived from the business were equally divided between them. Plaintiff then averred that, subsequent to the settlements and the division of profits hereinbefore referred to, and until September 17, 1927, additional live stock was purchased under this agreement, but that on or about that date the defendant repudiated the terms of the partnership contract. He averred that the defendant had no property in his own right which could be reached by process of law; that defendant threatened to remove and dispose of the live stock purchased by plaintiff and defendant, and, unless restrained by the court, would leave the plaintiff without remedy or redress. He further alleged that, prior to the commencement of this suit, he demanded an accounting with the defendant, which the defendant ignored.

The defendant, answering, admitted that "plaintiff and defendant had an agreement, understanding, and arrangement relative to the purchase of live stock and the probable formation of a partnership in connection with said business." Defendant asserts that the plaintiff was working on a commission basis of $1 per head for all cattle that he assisted the defendant in purchasing, but that an agreement to form a partnership was made on condition that the plaintiff came into possession of the sum of $3,000 by September 1, 1927, which sum would equal the amount that the defendant then had in the business. He asserts that, prior to September 1, 1927, they were proceeding with the understanding that, if the plaintiff raised the $3,000 on or before that date, for the purpose of a division of profits they would consider the partnership as commencing on July 28, 1927, the date of the contract, and would equally divide any profits made in purchase and shipment of live stock prior to that date, but that, in the event that the plaintiff did not raise the $3,000 on or before September 1, 1927, he should be paid by the defendant at the rate of $1 per head for all cattle purchased by defendant through plaintiff's assistance prior to that date; that, pursuant to their agreement, they kept an account of the live stock purchased and the profit made on the purchase thereof, and on each shipment or sale of cattle so purchased; and that the net profits accruing from all shipments and sales made prior to September 1, 1927, were equally divided between them. But, he says, this equal division was made with the understanding that, if a partnership was formed by the plaintiff and defendant on September 1, 1927, such division of profits would stand as a final settlement of their accounts, but that, if no partnership was formed in accordance with the aforesaid agreement, a settlement would be made upon the basis of $1 per head to the plaintiff for all cattle that plaintiff had assisted defendant in purchasing; that, if this amount was in excess of one-half of the profits made on such shipments or sales, defendant would pay the plaintiff the difference, and if less than one-half the profits, that the plaintiff would refund such difference to the defendant. He alleges that plaintiff and defendant continued to work together under this agreement until September 1, 1927, at which time plaintiff failed to produce the $3,000 hereinbefore referred to, and that, by reason...