Morrow v. Murphy
| Decision Date | 23 May 1899 |
| Citation | 79 N.W. 193,120 Mich. 204 |
| Court | Michigan Supreme Court |
| Parties | MORROW v. MURPHY. |
Error to circuit court, Wayne county; Robert E. Frazer, Judge.
Action by George L. K. Morrow against Thomas Murphy. There was a judgment for plaintiff, and defendant brings error. Modified.
Moore & Moore, for appellant.
Thomas T. Leete, Jr., for appellee.
Plaintiff brought suit in assumpsit against defendant for services, claiming that he had worked for defendant for a number of years under an agreement that he should receive for his services $1,200 a year as salary, and 8 per cent. of the net profits; that the services had terminated; and that there was a balance due him of $5,000. Defendant pleaded the general issue, with notice of set-off and recoupment. The case was referred, and the referee made findings, and settled a bill of exceptions, from which it appears that, in 1889 the plaintiff entered into a contract with defendant to superintend and manage the defendant's factory, for which he was to receive $1,200 a year, and 8 per cent. of the net profits. The business was done in the name of the Murphy Iron Works. The original contract was renewed from time to time without material change, sometimes by a new contract, and at other times by a verbal continuance of a former one, until December 31, 1896, when the contract relations ceased. When the time came for a final separation and settlement defendant caused an inventory of the property on hand to be made. Plaintiff refused to settle on that basis, and brought this suit. The referee found that plaintiff's salary had been paid in full; that he had drawn $17,970.12 on account of profits; and that there was still due him, on net profits, the sum of $1,455.62. A bill of exceptions, with assignments of error, was settled and filed with the report of the referee. Exceptions to the report were also filed. The exceptions were overruled by the court below, and defendant brings error.
Defendant claims here that the plaintiff cannot recover in this action, because (1) the parties were partners, the accounts unsettled, and the sole remedy is in equity; (2) it is impossible in the present suit at law to settle the accounts or fix the rights of the parties.
It is unnecessary to set out the whole contract here to determine the question whether the parties were partners. The contract recites that "this contract is made *** between Thomas Murphy, proprietor of the Murphy Iron Works, of the one part, and George L. K. Morrow, *** on the other part, whereby the said George L. K. Morrow agrees to manage and superintend the machine and foundry business carried on by the said Thomas Murphy, under the name of the Murphy Iron Works, *** for which the said Thomas Murphy agrees to pay the said George L. K. Morrow the sum of ***; also that, should Thomas Murphy desire to sell out part or the whole of the business, then this contract ceases at that time. ***"
From the wording of the contract, the pleadings in the case, and testimony given by Mr. Murphy, it is evident that the parties did not become partners. The notice under the plea sets out that the work and labor for which the action was brought was done under a special contract or agreement in writing, by the terms of which defendant agreed to hire the plaintiff at an agreed compensation; that the plaintiff left his employment that he neglected his duties as superintendent, and that defendant was entitled to his best mechanical ability; that, by such inattention to his duties as superintendent and manager, the business of the defendant was injured. Mr. Murphy's testimony is in keeping with this notice. The fact that the contract provides that the plaintiff should have a share of the profits does not necessarily make the parties partners. The contract simply fixes the measure of plaintiff's compensation for his services as superintendent and...
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