Municipal Paving Co. v. Herring

• Decision Date: 27 July 1915
• Docket Number: 4865.
• Citation: 150 P. 1067,50 Okla. 470
• Parties: MUNICIPAL PAVING CO. v. HERRING ET AL.
• Court: Oklahoma Supreme Court

150 P. 1067

50 Okla. 470

MUNICIPAL PAVING CO. v. HERRING ET AL.

No. 4865.

Supreme Court of Oklahoma

July 27, 1915

Ruling as to Costs, August 3, 1915.

Syllabus by the Court.

A summons was issued for defendant, under section 1339, Rev Laws 1910, and served upon the secretary of state. No showing of any kind was made that defendant had not appointed a service agent in this state. or that one of its officers did not reside in the state upon whom service could be made. Held, in the absence of a showing by the defendant that it either had a service agent or an officer in the state upon whom process could be had, the service was sufficient.

Where the parties to a contract only are concerned, a copartnership is not created, except where the parties so intend it, by a voluntary agreement to that effect.

In order to constitute a partnership inter sese there must be (a) An intent to form the same; (b) generally, a participating in both profits and losses; (c) and such a community of interest, as far as third persons are concerned as enables each party to make contracts, manage the business and dispose of the whole property.

A corporation cannot enter into a part nership agreement with an individual.

A corporation can enter into a joint venture with an individual, if the nature of the contract is in line with the business its charter authorizes.

In partnership agreements, if the contract is silent on that point, there is an implied agreement that the partners shall share in the losses.

If the interest in the profits is joint, then that generally makes it a partnership, but a common interest in the profits does not.

Where the defendant company retained control and possession over the entire business and the plaintiff had no legal or equitable right in the profits as profits, but only a contractual right to have his share paid over to him by the company, held not to constitute a "partnership."

Every member of a partnership is a principal, having a joint interest in the partnership property, and is an agent for his associates.

Contract examined, and held not to constitute a "partnership."

Where it was conceded the defendant was a foreign corporation and the evidence shows it was indebted to plaintiff upon a contract, where an attachment sued out was not called into question at the trial, it was not necessary for plaintiff to make proof of the issue and levy of the attachment.

Commissioners' Opinion, Division No. 4. Error from District Court, Pontotoc County; Tom D. McKeown, Judge.

Action by D. A. Herring and another against the Municipal Paving Company. Judgment for plaintiffs, and defendant brings error. Modified and affirmed.

J. J Eckford, of Dallas, Tex., and C. A. Galbraith, of Oklahoma City, for plaintiff in error.

C. F. Green and J. F. McKeel, both of Ada, for defendants in error.

MATHEWS C.

Action by D. A. Herring and Bert Hahn against the Municipal Paving Company, for recovery upon a contract. Judgment for plaintiffs, and defendant appeals. The parties will be designated as in the court below.

The defendant contends that its motion to quash service should have been sustained.

The defendant is a foreign corporation, with its offices in Dallas, Tex. It appears from the record that plaintiff filed his action in the district court of Pontotoc county and had summons issued, directed to the sheriff of that county, who returned the same unserved, stating that the defendant was not found in that county. Thereafter was issued a summons to defendant under section 1339, Revised Laws, 1910, directed to the sheriff of Oklahoma county, and served upon the secretary of state, as said section provides. Defendant insists that such service was authorized only when the foreign corporation has not designated an agent in this state upon whom process may be served, and that there must be the proper showing that the defendant had not appointed a service agent in this state, or that one of its officers did not continuously reside in the state, and without such showing the service was void if made only upon the secretary of state, as provided in section 1339. The service had in this case was statutory, and we know of no rule of law that requires the plaintiff to go beyond the requisites of the statute itself, and we can see no good reason for such a rule. Plaintiff elects to proceed against the defendant under this section, and by having service made upon the secretary of state impliedly states that the conditions under which the statute authorizes such service exists. To require him to make an affirmative showing to that effect would be to require him to prove something that no one knew better than the defendant itself. Of course, if it had appointed a service agent, that fact would appear of record, but it might be impossible for plaintiff to know whether or not an officer of the company was residing in the state upon whom service might be had. In its motion to quash, defendant there even does not allege that it had a service agent in the state, or that one of its officers resided in the state, but simply demands that plaintiff prove that it did not have one or the other. We hold the service sufficient, in the absence of a showing by the defendant that it either had a service agent or an officer in the state upon whom process could be had.

The contract out of which this action arose is as follows:

"State of Texas, County of Dallas.

This agreement made and entered into by and between D. A. Herring of Pontotoc county, Okla., and Bert Hahn of Lamar county, Texas, parties of the first part, hereinafter known as Firm, and the Municipal Paving Company, of Dallas county, Texas, incorporated under the laws of the state of Texas, parties of the second part, hereinafter known as Company, witnesseth:

That said Firm owns leases made with certain individuals in Oklahoma, on lands in Pontotoc county, Oklahoma, containing rock asphalt, as follows: One of said leases on about 100 acres land near Ada, Oklahoma, being in the name of D. A. Herring, but is owned by D. A. Herring and Bert Hahn jointly, the other lease on 260 acres land near Ada, Oklahoma, known as the Varner lease, are in the names of D. A. Herring and Bert Hahn, copies of which leases are attached hereto and made a part of this agreement. The Firm agrees to mine, crush, and ship asphalt to be taken from its said asphalt mines in said Pontotoc county to said Company of such quality and in such quantities as the Company may require in carrying out paving and other contracts made, or to be made, by said Company.

All machinery, tools and implements now at the mines in Pontotoc county, Oklahoma, are to remain the property of said Firm. Of said Firm, D. A. Herring is to devote his time to getting out, crushing and shipping of rock asphalt from the mines, of which he is to have supervision. Bert Hahn agrees to supervise the work of laying paving where contracts have been made or to assist in such work, and to assist in the promoting of new contracts. Both members of Firm are to assist the Company in procuring contracts. Each of the members of the Firm is to receive cash advances up to the amount of one hundred ($100.00) dollars monthly while employed, or working in the interest of rock asphalt contracts, by which name such transactions between the parties shall be known, and such sums of money advanced shall be returned to the Company out of the earnings of rock asphalt contracts. It is agreed that the rock asphalt and other material furnished by the Firm to the Company shall be at actual cost of production, plus the royalty, 10 cents ton, to be paid. It is agreed that in the contracts which have been awarded to Ockander Bros. in Sherman and the Municipal Paving Company in Dallas, rock asphalt furnished by the Firm is to be used, and that the same terms and provisions as are to be applied to future contracts shall apply to these two. It is understood and agreed that the Company shall make efforts to secure contracts for paving streets and roads with rock asphalt in Texas, Oklahoma, Louisiana and Kansas, and be reimbursed for any expenditures of money in such promoting. It is also agreed that any machinery, tools and implements that may be bought or leased by the Company for the purpose of laying rock asphalt paving or doing any part of the work shall be proper charge against such contracts and the Company shall be reimbursed for such advances out of the earnings of the rock asphalt contracts.

No contract shall be entered into except by the Company, and which shall be first agreed upon between the two parties. It is agreed that the profits of rock asphalt contracts shall be equally divided between the two parties hereto, but no distribution of profits shall take place until all

advances made in cash to the Firm have been paid, and all machinery, tools and implements bought and promoting and other expenses shall have been paid, as well as losses, if any, that may be sustained on contracts. It is agreed that the Firm shall keep account of all expenditures made by them and send weekly statements thereof to the Company, which shall also keep account of all payments made by it and furnish monthly statements to the Firm.

This agreement shall continue in force for the term and life of the leases on asphalt land.

Signed in triplicate.

Dallas, Texas, 6--30--1910."

In his petition, it is alleged that D. A. Herring is the real party in interest, and that Bert Hahn is a nominal party only, having no interest in the results of the suit.

It will be noted in the contract that plaintiff was to devote his personal attention to getting out and crushing rock asphalt from the mines near Ada, Pontotoc county, and shipping the same to the defendant company at such points as directed by the...