Pope v. Thompson

• Decision Date: 04 May 1920
• Citation: 177 N.W. 607,171 Wis. 468
• Parties: POPE v. THOMPSON.
• Court: Wisconsin Supreme Court

171 Wis. 468

177 N.W. 607

POPE

v.THOMPSON.

Supreme Court of Wisconsin.

May 4, 1920.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by Stewart Pope against Markus Thompson. Judgment for plaintiff, and defendant appeals. Reversed.

Partnership. The complaint alleges that the plaintiff is a steam shovel operator; that the defendant is a sewer contractor; and that on or about the 6th day of August, 1919, the plaintiff and defendant “entered into an agreement to share equally in the profits for the digging and constructing of certain sewers in the city of Kenosha”; that pursuant to said agreement the plaintiff went with defendant over the ground where the sewers were to be constructed, examined the plans, and performed other services in connection with said agreement; that on August 8, 1919, the contract for the construction of said sewers was authorized by the officers of the city of Kenosha, confirmed by the common council on August 11, 1919. The contract price for work to be done was $25,000, and “it was expressly agreed by and between the plaintiff and defendant that each were to share equally in the profits of said work, whether the work was actually performed by them or sold to some other sewer contractor;” that on August 16th the defendant sold the contract for the sum of $2,800, and demanded judgment against the defendant for $1,400.

The defendant in his answer denied that the plaintiff and defendant entered into an agreement to share the profits of constructing the sewers referred to; “that on or about said time the said plaintiff and defendant had conversations respecting such work, but such conversations or acts or conduct on the part of the plaintiff did not result in the making of any agreement;” and alleged that the defendant refused to enter into any agreement, and the contract of the city of Kenosha was awarded to the defendant personally.

There was a trial. The jury, by general verdict, found in favor of the plaintiff, and assessed his damages in the sum of $1,400. Plaintiff had judgment accordingly, from which the defendant appeals.Robert V. Baker, of Kenosha, for appellant.

Calvin Stewart, of Kenosha, for respondent.

ROSENBERRY, J. (after stating the facts as above).

[1] We are not enlightened as to the theory upon which the plaintiff proceeded in this action. Plaintiff carefully refrains from alleging that the plaintiff and defendant were partners. The allegation is “that each was to share equally in the profits.” Manifestly, if there was a partnership, in the absence of an accounting or settlement of the partnership affairs, the plaintiff could not maintain this action at law against his copartner. No such accounting or settlement are alleged or proven. The only other theory upon which the plaintiff can sustain his contentions in this case is that there was a contract for a partnership, and that by reason of the defendant's breach of this contract for a partnership the plaintiff has suffered damages, which he is entitled to recover. Hill v. Palmer, 56 Wis. 123, 14 N. W. 20, 43 Am. Rep. 703.

[2] The court instructed the jury:

“To entitle him to a favorable verdict the plaintiff must satisfy the jury by the preponderance or greater convincing force of the credible evidence that the agreement he claims was made between him and the defendant. A contract or agreement implies a meeting of the minds of the parties; that is, that they understand the proposition involved alike, the one consenting or agreeing to exactly the same thing the other does.”

The jury found that there was a contract, and the vital question in the case is whether or not there is evidence sufficient to sustain the finding of the jury. The evidence is practically uncontradicted, and where contradicted we take as true that in favor of the plaintiff.

It appears that plaintiff was an experienced engineer or shovelman. The defendant went to the house of the plaintiff and requested the plaintiff to inspect a shovel which the defendant was using at the time. This was some time in the month of July. During the conversation the plaintiff told the defendant there was a good job coming to him which had not yet been advertised; whereupon the defendant asked the plaintiff how he would like to be in with him, and the plaintiff responded, “All right, Markus, I think we could make some money.” The defendant said, “I would like to have you with me.” The plaintiff responded, “Well, if that job comes, maybe we can land it.” After the city had advertised for bids plaintiff, accompanied by a friend who was in the employ of the defendant, went to the defendant's house. The defendant did not have the plans, but by arrangement the three met the next day and looked over the ground where the work was to be done. The defendant said that he was going to figure on the job, and that if he got it the plaintiff was in with him. To this the plaintiff replied, “All right, I'm with you.” The defendant then asked the plaintiff if he wanted to take the plans and specifications home, but the plaintiff replied, “No; it is no use. You are better posted on the work than I am. I handle the digging, the machine end of it, and you handle the other.” On the 6th of August the plaintiff and defendant drove over a portion of the work and examined the location for the sewers on Fairfield avenue and other streets. They met again on Friday, August 8th, and the plaintiff then learned that the defendant was the lowest bidder. The...