Lintner v. Millikin

• Decision Date: 31 January 1868
• Citation: 47 Ill. 178,1868 WL 4957
• Parties: WILLIAM LINTNERv.JAMES MILLIKIN.
• Court: Illinois Supreme Court

47 Ill. 178

1868 WL 4957 (Ill.)

WILLIAM LINTNER

v.JAMES MILLIKIN.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Macon county; the Hon. CHARLES EMERSON, Judge, presiding.

The opinion states the case.

Messrs. NELSON & ROBY, for the plaintiff in error.

Mr. A. J. GALLAGHER, for the defendant in error.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

The decision of the principal question made on this record will dispose of all other questions made and discussed by the plaintiff in error. The question is, was there a partnership between these parties in the enterprise in which Barnes & Lintner were the active operators?

This is to be determined by the facts, and the intention of the parties at the time it was inaugurated.

The material facts are, that Barnes & Lintner were, in the fall of 1864, and had been for some time previous thereto, partners in the manufacture of pumps, at Decatur. At that time, they conceived the idea that money could be made by the manufacture of cultivators, and they determined, if they could find a person willing to advance the necessary capital for an interest in the profits, they would engage in the business. Millikin, being a banker in that city, with whom Barnes & Lintner kept their bank account, was applied to by Barnes, and it being thought the enterprise would be a profitable speculation, and that the business might he done and the profits realized and closed up by the first of July, 1865, Millikin agreed to furnish the requisite funds for the manufacture of such number of machines as Barnes & Lintner might think safe and profitable to make; that Barnes & Lintner should take the management of the business, manufacture and sell the machines, and collect the proceeds, and return to Millikin his capital and a share of the profits, which were to be divided in the proportion of two thirds to Barnes & Lintner, and one third to Millikin.

The business did not result so fortunately as was anticipated, and Millikin's money was not returned to him by the first of July, 1865. In the fall of that year, Millikin, for the first time mentioned the subject of interest on his advances, and expressed his regret, and the inconvenience to which he was subjected, by the failure to refund, and requested them to hasten collections on the cultivator account. The original agreement made with him was, that he was to have the money invested by him “in any event,” and one third of the profits, but no time was stipulated; so fast as the money was realized from the machines it was to be paid to Millikin until his investment was returned, and then he was to be paid out of the next proceeds of the business, one third of the profits. As no losses were anticipated by either of the parties, there was no understanding in regard to them, and nothing said about interest. Barnes & Lintner, in the winter of 1864-5, proceeded to manufacture the cultivators, Millikin supplying the money, until the amount reached five hundred, when Lintner wished to stop--but they went on and manufactured one thousand and two, when Lintner refused to be any further interested. The advances made by Millikin up to this time, after deducting all that had been paid in bank on this account, amounted to eight thousand two hundred and ninety-one dollars and sixty-eight cents, exclusive of interest.

On the trial, Barnes was examined as a witness for the plaintiff, and so was the plaintiff himself, and they were severally asked by the plaintiff's counsel how they regarded Millikin in the transaction, whether as a partner or not. To asking this question and answering it, the defendant objected, but the court permitted it, and Barnes stated that he never had regarded Millikin as a partner, but had considered him in the light of a creditor of the firm of Barnes & Lintner, for his advances of money for the business. That Millikin was to have the amount of his advances paid back to him in any event. Millikin declared that he never regarded it as a partnership transaction, but considered it as a loan of money to Barnes & Lintner, which they were bound to pay back to him.

Lintner, on his examination as a witness on his own behalf, testified, without objection, that at an interview with Millikin about these affairs, he admitted he was to share one third of the losses, and Lintner told him, at that time, he had always regarded him as a partner, all which, Millikin, on being recalled, positively denied.

We believe the rule to be well settled, that the construction of contracts, written or verbal, is for the court, and cannot be expounded by witnesses. Their legal effect cannot rest in the opinions of witnesses. Parties may become partners without their knowing it, the relation resulting from the terms they have used in the contract, or from the nature of the undertaking. They may make a bargain together, without knowing it creates or involves a partnership, and subjects them to the law of partnership. This occurs most frequently when the agreement relates to a single transaction, or to one or two only. Pars. on Partn., 51, ch. 5.

We think the question and answer should not have been permitted. Independent of these opinions, what do the naked facts show? Simply,...