Hirsch v. Legeros

• Decision Date: 11 May 1931
• Docket Number: 6845.
• Citation: 235 N.W. 361,58 S.D. 426
• Parties: HIRSCH et al. v. LEGEROS et al.
• Court: South Dakota Supreme Court

235 N.W. 361

58 S.D. 426

HIRSCH et al. v. LEGEROS et al.

No. 6845.

Supreme Court of South Dakota

May 11, 1931

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by Paul F. Hirsch and others against George Legeros and another, copartners doing business as Legeros Brothers. From the judgment and an order denying defendants' motion for a new trial, defendants appeal.

Reversed.

Hasche & Faley and Matthew J. Schmit, all of Watertown, and T. R Johnson, of Sioux Falls, for appellants.

Odean Hareid, of Sioux Falls, for respondents.

ROBERTS J.

The defendant George Legeros, on January 8, 1925, entered into a lease with the plaintiffs for the use of their building in the city of Sioux Falls. The term of the lease was for a period of five years commencing on March 1, 1925. Billiard and pool hall equipment was installed in the building, and the place was conducted as a pool hall until March 1, 1927 when, on account of financial embarrassment, the business was discontinued.

The plaintiffs allege in their complaint that George Legeros entered into the lease for and in behalf of the Legeros Bros., a partnership, consisting of George Legeros, the party named as lessee in the contract, and his brother, Peter Legeros. For a first cause of action the plaintiff's allege that by reason of the negligence and carelessness of the defendants the building was damaged to the amount of $474, and upon a second cause of action the plaintiffs claim to be entitled to the difference between the amount provided in the lease agreement and the rental specified in a new lease; that by reason of the abandonment of the premises plaintiffs were compelled to relet the same at a reduced rental, and the premises were thus leased for the benefit of the defendants. Separate answers were interposed. It is denied by each of the defendants that the lease was entered into in behalf of a partnership, and each defendant denies that they were copartners during all of the times mentioned in plaintiff's complaint, but admit "the fact to be that during a portion of said time the said defendants were co-partners." They affirmatively allege that at the time of the surrender of possession of the premises on March 1 1927, an agreement was made and entered into between the defendant George Legeros and the plaintiffs that in consideration of the payment of $600 the plaintiffs agreed to cancel the lease, and that $350 of said amount had been paid, and that the defendant George Legeros by his answer offered to pay the balance. The action was tried to the court without a jury and findings and judgment were entered for the plaintiffs. From such judgment and order denying motion for new trial, the defendants appeal.

Defendants first contend that the testimony fails to show the existence of a partnership. Unless there is a clear preponderance of the evidence against the finding of the trial court that at the time of the execution of the lease and during all the time the building was occupied pursuant to the lease the defendants were copartners, this court is bound by such finding. In other words, we cannot interfere with such conclusion of the trial court, although it may be opposed to our view considering the weight of the evidence, if from a review of the entire record it can be said that the finding is not contrary to the clear preponderance of the evidence. It must be conceded that there is no testimony of an agreement between the parties and there is no testimony to the effect that it was the express intention or purpose of defendants to form a partnership. However, a partnership may arise from the conduct of the parties if it can be determined therefrom that such intention in fact existed. Since there was no express agreement, we must consider the manner of conducting and the circumstances surrounding their business transactions to arrive at the intention of the parties. While the building was being remodeled and prepared for occupancy the defendants displayed a large banner or sign across the front of the building stating that a billiard parlor would be opened in the building by the Legeros Bros. Later this banner or sign was displaced by a more permanent sign bearing the words, "Brunswick Recreation Parlors. Legeros Bros." Peter Legeros represented to patrons that he was interested in the business as a partner. George Legeros applied to the city commission and secured the issuance of a license in his name to run the pool hall for the year 1925. His brother Peter made a similar application and secured the issuance of a license in his name for the year 1926. Notes and chattel mortgages in connection with the business enterprise were signed, "Legeros Bros. by George Legeros," and other notes and mortgages were signed, "Legeros Bros. by Peter Legeros." A property statement was furnished to the Minnehaha National Bank, Sioux Falls, S. D., signed, "Legeros Bros. by George Legeros." It was stated therein that each partner contributed one-half of the...