Kootz v. Tuvian

• Decision Date: 26 May 1896
• Citation: 118 N.C. 393,24 S.E. 776
• Court: North Carolina Supreme Court
• Parties: KOOTZ . v. TUVIAN.

24 S.E. 776

118 N.C. 393

KOOTZ .

v.TUVIAN.

Supreme Court of North Carolina.

May 26, 1896.

Partnership — What Constitutes — Sharing in Profits.

An agreement between two persons to share the profits of a business is, inter se, prima facie proof only that they are partners.

Appeal from superior court Durham county; Starbuck, Judge.

Action by Louis Kootz against Abe Tuvian. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Puller, Winston & Fuller and W. A. Guthrie, for appellant.

J. S. Manning and Boone, Merritt & Bryant, for appellee.

FAIRCLOTH, C. J. This is an action for possession of merchandise goods. The plaintiff claims to be the sole owner, and that defendant was employed to attend to the business as a clerk and to receive for his services one-half of the net profits. The defendant contends that they were partners, and that one partner cannot maintain, for possession of the partnership property, an action against the other partner. The sole question is, were they partners? If so, the plaintiff cannot recover; if not, he is entitled to recover. Two issues were submitted: "(1) Is the plaintiff the owner of and entitled to the possession of the goods sued for? Yes. (2) What is the value thereof? $1,088." Each party introduced evidence tending to establish his view. His honor, after defining a partnership to the jury, and explaining the rights and powers of partners, charged them that "an agreement to share the profits of a business is the ordinary test of a partnership, and makes a prima facie case of partnership between the persons making such agreement, and you are instructed that, it being admitted that the plaintiff and defendant agreed to divide the profits, a presumption is raised that they were partners in the business, and the burden rests upon the plaintiff to rebut this presumption by showing that the relationship, In which he and the defendant agreed to enter, was notthat of partners, but that of employer and employe, and you will consider all the evidence, and say whether or not it is sufficient to overcome this presumption, and satisfy you that Tuvian was merely the clerk of Kootz." He also charged that if, in the light of all the evidence, the jury were not satisfied that the presumption raised in this case had been overcome, they would answer the first issue "No." The exceptions to evidence, the prayers for instruction, the exceptions to the charge, and the judgment, taken as a whole, point to and involve nothing more...