Lockwood v. Edwards

• Decision Date: 17 December 1924
• Docket Number: No. 5936.,5936.
• Citation: 126 A. 757
• Parties: LOCKWOOD v. EDWARDS.
• Court: Rhode Island Supreme Court

126 A. 757

LOCKWOOD

v. EDWARDS.

No. 5936.

Supreme Court of Rhode Island.

Dec. 17, 1924.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge.

Action by Richard W. Lockwood against Joseph Edwards. Plaintiff was nonsuited, and he excepts. Exceptions sustained.

Charles R. Easton, of Providence, for plaintiff.

William H. McSoley, of Providence, for defendant.

SWEETLAND, C. J. This is an action of the case in assumpsit. The case was tried before a justice of the superior court sitting with a jury. At the conclusion of the plaintiff's evidence the justice, on motion of the defendant, nonsuited the plaintiff. The case is before us upon the plaintiff's exception to the nonsuit, and also upon his exceptions to certain rulings of the justice upon the admission of evidence.

It appears from the transcript of evidence that the plaintiff and defendant are journeymen carpenters; that they entered into an oral agreement, which each in his testimony called a partnership, to do the carpentry on a house in the village of Apponaug, and also to build a house on a house lot belonging to the defendant, in the village of Auburn. They agreed that the latter house should be sold when completed, and from the purchase price the defendant was to be allowed $500 for the house lot. Throughout the trial the business in question was treated by the parties, the court, and counsel as a partnership transaction. Such it was, though clearly not a general partnership, but a joint adventure for a special limited purpose, in which the parties were to divide the losses and share the profits. We will hereafter in this opinion, however, refer to the transaction as a partnership.

Before the commencement of this suit the work for which the partnership had been formed was completed. In accordance with the agreement, the defendant bought all the materials used in the two houses, received the contract price for the work at Apponaug, sold and received the purchase money for the house and lot at Auburn, and paid in full all the creditors of the partnership. We think it should be found from the evidence that, after the payment of all the partnership debts, the defendant rendered to the plaintiff a statement of account of the money received by the defendant in the partnership transaction, and the amount which he had expended for materials. This account showed that, as far as the money of the partnership received and expended by the defendant was concerned, the plaintiff was entitled to receive from the defendant the sum of $483.91 on account of the house at Apponaug, and $798.50 on account of the house at Auburn, in all, the sum of $1,282.41; that the plaintiff had, from time to time during the progress of the work on the houses, received from the defendant sums of money amounting to $715; and that, as to this part of the partnership transaction, the plaintiff was at the time of the accounting entitled to receive from the defendant the sum of $567.41. At this accounting the correctness of the defendant's statement was admitted by the plaintiff. The defendant then claimed that the amount due from him to the plaintiff should be reduced by the sum of $88, for use of the defendant's automobile in the partnership business. Although the whole of this charge was deducted from his share, the plaintiff assented to the claim, and agreed to take $479.41 in full settlement of the account. The defendant then demanded that this sum of $479.41 should be reduced by $100, which the defendant claimed as a commission for selling the house and lot at Auburn. The plaintiff refused to allow this latter claim of the defendant, unless the plaintiff also should be allowed the sum of $100 for drawing the plans for the Auburn house, which plans he testified were prepared entirely by him.

According to the evidence before the superior court, the only disagreement between the parties arose from the defendant's claim of a commission for selling the Auburn house. In an amended bill of particulars filed in the case, the plaintiff included certain items for materials and tools remaining after completing the work of the partnership. He did not, however, claim anything because of these materials and tools at the accounting, and in his direct evidence he did not refer to them. In cross-examination he was asked in regard to this amended bill of particulars, but it is plain that the items therein are not insisted upon by the plaintiff as the basis of any claim which he makes against the defendant. They have no part in the dispute between the parties. Plaintiff's counsel explicitly stated a number of times at the trial in the superior court that the plaintiff accepted the defendant's statement of account as correct, and only disputed the defendant's claim for commission.

The justice nonsuited the plaintiff, upon the ground that the plaintiff's claim was for money due him from the defendant by reason of the partnership transactions, as to which there had not been a complete accounting and a promise by the defendant to pay the plaintiff a specific sum; that the plaintiff's evidence showed a dispute as to the amount due the plaintiff still existing between the parties; and that therefore the controversy was not cognizable in an action at law, but could only be considered in a proceeding in equity for an accounting.

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