Martindale v. Dickey

• Decision Date: 17 June 1949
• Docket Number: 9022.
• Citation: 38 N.W.2d 140,72 S.D. 595
• Parties: MARTINDALE v. DICKEY.
• Court: South Dakota Supreme Court

38 N.W.2d 140

72 S.D. 595

MARTINDALE v. DICKEY.

No. 9022.

Supreme Court of South Dakota

June 17, 1949

Lacey & Perry, Sioux Falls, for appellant.

H F. Chapman, Sioux Falls, for respondent.

ROBERTS Judge.

Plaintiff claiming the existence of a partnership agreement with the defendant brought this action for an accounting, the appointment of a receiver and injunctive relief. Defendant, owner of a 120 acre farm near Sioux Falls equipped with machinery, farm buildings and two dwellings, on or about July 1, 1941, entered into an oral agreement with plaintiff by which the latter agreed to work the farm. Plaintiff agreed to furnish all labor. The livestock, feeds and grains were to be owned jointly by them, and each party was to share equally in the net proceeds from the venture after the payment of operating expenses, exclusive of labor. Plaintiff then owned and resided on a neighboring farm. Defendant, the proprietor of a cafe in Sioux Falls, occupied one of the dwellings on the farm. Some time in November 1941, plaintiff moved from his own farm of forty acres to the other dwelling on defendant's farm and continued to reside there until January, 1947, when the parties agreed to terminate their relationship and authorized the Union Savings Bank, Sioux Falls, S. D., to sell at auction all jointly owned property. The net proceeds of the auction sale amounted to $7,763.52. Trial resulted in findings and conclusions determining the rights of the parties. The court entered judgment directing the bank to pay the sum of $151.24 to plaintiff, $133.50 to Clarence Young for services rendered as an accountant and the balance of the fund to the defendant. Plaintiff appeals.

A partnership is an association of two or more persons to carry on as coowners a business for profit. SDC 49.0201. Such a relationship does not usually exist between the owner of a farm and the tenant who has undertaken to work it on shares. The fact that the parties may have a common right or interest in some of the property from which they may share returns does not in itself establish a partnership. Cedarberg v Guernsey, 12 S.D. 77, 80 N.W. 159. The parties, however, have proceeded on the theory, and we may therefore assume for the purposes of this case, that the plaintiff and defendant were in fact partners.

The errors assigned involve the sufficiency of the evidence to sustain the findings of the court and its conclusions of law. It will be conceded as contended by defendant that when dealing with findings of fact this court will not weigh the evidence and the credibility of the witnesses since to do so would invade the province of the trial court. If it cannot be said as a matter of law that the facts are other than as found, the judgment below will not be disturbed.

Consideration will first be given to plaintiff's claim that defendant having agreed to furnish all farm machinery the amounts expended for machine hire should be charged to defendant and that the latter should also be held to have agreed to pay to plaintiff the equivalent of the landlord's share of crops grown on leased land. The court found that defendant agreed only to furnish the machinery on the farm at the time of the making of the contract and that 'there never was any agreement or understanding, express or implied, that the defendant should be personally charged with the landlord's share of the crops, seed and harvesting on the Lackey 240 acres, and that the plaintiff should receive the same, or its equivalent in money.'

Plaintiff's position is thus stated in his brief: 'There was some disagreement between the parties as to whether or not the defendant agreed to furnish all the machinery or just such machinery as he had at the inception of the partnership relation. The defendant had no binder, ensilage cutter or corn husker. The sum of $1,604.00 was incurred and charged to the partnership for custom binding, ensilage cutting and corn husking. The plaintiff contends that the undisputed evidence shows that the defendant agreed to furnish all machinery and that these machinery hire items should be charged to the defendant personally instead of to the partnership. * * * While the plaintiff believes that the evidence in this case shows an express promise on the part of the defendant at least to furnish the Lackey land to the partnership at his own expense, as distinguished from a promise to so furnish such land and to pay into the partnership the specific amounts yielded as share rent therefor, nevertheless, if it be assumed that the evidence is not sufficient to show such an express promise, then the plaintiff maintains that the evidence is such as to necessarily imply such a promise.'

Plaintiff during the existence of the partnership kept an account of the partnership business, entering in such books of account items of receipts and disbursements. These records were submitted at different times to an accountant and statements of account were prepared. It was from these statements that the partnership prepared its income tax returns. The partnership records, audits and copies of the tax returns are in evidence. Plaintiff testified as follows: 'Q. He said you could have it most any way you wanted it? A. He (defendant) said, how do you figure would be the right way? I said we would put our stock together and inventory it, and he would furnish the machinery and the land, and, against my labor and management and half of the stock. * * *

'Q. In 1943 what tracts did you farm? A. I got 80 acres of lackey. * * *

'Q. Now, did you have any talk with Mr. Dickey about renting the 80 acres from Mr. Lackey? A. I did.

'Q. And what talk did you have with Mr. Dickey about that? A. I told him I could get the eighty of Lackey's on the east side of the road. * * *

'Q. And what did Mr. Dickey say when you told him you could get that? A. Wanted to know what the deal was and I told him had to give two-fifths and get three-fifths. He said he guessed that would be all right. * * *

'Q. Was anything said about who was to pay that two-fifths rent--the partnership or Dickey? A. No, there was not; there wasn't another word said about it. * * *

'Q. Did you have a conversation with Mr. Dickey about the 160 acres additional? A. The same as he did with the 80, only I told him we got three-fifths and two-fifths and the hay was one-half.

'Q. And the hay was one-half? A. Yes sir.

'Q. What did Mr. Dickey say to that? A. He just said all right. We had no land, that is, after it was flooded out every year, only that 20 acres--22. * * *

'Q. Now, when you started out on these farming operations, did you have any conversation with Mr. Dickey as to what portion of machinery he would furnish? A. Nothing said only he would furnish the machinery.'

Defendant testified: 'I can't repeat the exact conversation but it was to this effect, that he would go in and share fifty-fifty all the money we could make there. I would put in the farm, keep it up, and let him use what machinery was on the place. There was no agreement made as to buying a lot of...