Langley v. Sanborn

• Citation: 135 Wis. 178,114 N.W. 787
• Parties: LANGLEY ET AL. v. SANBORN.
• Decision Date: 28 January 1908
• Court: United States State Supreme Court of Wisconsin

135 Wis. 178

114 N.W. 787

LANGLEY ET AL.

v.SANBORN.

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Ashland County; O. T. Williams, Judge.

Action by George W. Langley and others against G. F. Sanborn. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions to render judgment for defendant.

Action for damages resulting from breach of contract. The jury found that about March 6, 1902, the defendant agreed with the plaintiffs that, if the latter would turn over to him their option to purchase certain lands from J. V. Farwell, and would get for the defendant an extension of the option, if desired, he would have the lands looked over, and, if he found that he could purchase them for a satisfactory price, he would do so and resell them within a reasonable time, and divide with the plaintiffs the net profits which he would make on such resale; that the plaintiffs performed their part of the agreement; that the defendant made a purchase by means of the option, but, instead of taking the title to himself, took it in the name of a corporation controlled by him, and repudiated the whole agreement. Other facts were found not essential to be stated, and the amount of damages, for which judgment was rendered in plaintiffs' favor, from which the defendant appeals.A. W. Sanborn (John Barnes, of counsel), for appellant.

Reid, Smart & Curtis, for respondents.

DODGE, J. (after stating the facts as above).

Among the many questions of fact and law controverted by counsel, there is one the answer to which is so fundamental and decisive of the case as to render consideration of the others immaterial. For the purposes of that question, it may be assumed that the findings of the jury mentioned in the statement of fact are all sustained by the evidence, and that the contract on plaintiffs' part has been so fully executed as to take it out of the statute of frauds, and that the option which they purported to hold and which they transferred was of sufficient validity to serve as a consideration for defendant's promise. But, after conceding all such matters, it is still urged that plaintiffs' promise was merely to launch and conduct partnership dealings in real estate, and is therefore void under the statute of frauds. Bird v. Morrison, 12 Wis. 135; McMillen v. Pratt, 89 Wis. 612, 631, 62 N. W. 588;Seymour v. Cushway, 100 Wis. 580, 76 N. W. 769, 69 Am. St. Rep. 957;Smith v. Putnam, 107 Wis. 155, 82 N. W. 1077, 83 N. W. 288;Scheuer v. Cochem, 126 Wis. 208, 213, 105 N. W. 573, 4 L. R. A. (N. S.) 427. An accurately inclusive and exclusive definition of partnership seems to have eluded the capacity of courts to express. It was said by the late Chief Justice in Sullivan v. Sullivan, 122 Wis. 326, 99 N. W. 1022: “A very learned English Master of the Rolls (Sir George Jessel) refrained from making any attempt to define a partnership, because there had been so many attempts with no two agreements, except in a general way. Pooley v. Driver, L. R. 5 Ch. Div. 458, 471. In that case it was held that: ‘In the absence of something in the contract to show a contrary intention, the right to share profits as profits constitutes, according to English law, a partnership.’ ” A definition was thus phrased by Bardeen, J., in Serfling v. Andrews, 106 Wis. 78, 81 N. W. 991: “The usual test of a partnership is whether there is a community of interest in the profits and losses of the business. Any arrangement which gives the parties such a community of interest constitutes them partners.” Lyon, C. J., in Spaulding v. Stubbings, 86 Wis. 255, 262, 56 N. W. 469, 39 Am. St. Rep. 888, approved a more specific definition from 1 Bates on Partnership, § 1: “A partnership is the contract relation subsisting between persons who have combined their property, labor, and skill in an enterprise or business, as principals, for the purpose of joint profit.” But this definition is far too limited to stand the test of practical application. There need be no combining of property, for one alone may contribute all the property. Neither need there be combining of skill or labor, for this, too, may be the contribution of only one partner. Treat v. Hiles, 68 Wis. 344, 32 N. W. 517, 60 Am. Rep. 858. Again, it has been held that there need be no express agreement for any sharing of losses. Clinton B. & I. Works v. First Nat. Bank of Darlington, 103 Wis. 117, 122, 79 N. W. 47. Thus we are brought back to the one element relied on by Sir George Jessel, of a community of interest in the profits of the business as profits; and yet this is elusive and difficult of application, for there are many decided cases which have denied a partnership notwithstanding an agreement that some proportion of the profits should be received by the party sought to be charged as a partner. This, however, will be found to have been on the ground that it was apparent from the whole transaction that it was not the agreement that he should become interested in the profits as profits of the enterprise, but merely as a measure of compensation for the services, property, or opportunity furnished by him in aid of the business which, notwithstanding, was held to be the separate business of the other party alone. Hoile v. York, 27 Wis. 209;Ford v. Smith, 27 Wis. 261;Nicholaus v. Thielges, 50 Wis. 491, 7 N. W. 341;Sohns v. Sloteman, 85 Wis. 113, 55 N. W. 158. Cases in this state in which the conclusion of partnership has been reached, mainly on the ground of community of interest in the profits, although often in combination with other circumstances, are ...