Raymond S. Roberts, Inc. v. White, 1162

• Decision Date: 05 May 1953
• Docket Number: No. 1162,1162
• Parties: RAYMOND S. ROBERTS, Inc. v. WHITE et al.
• Court: Vermont Supreme Court

Page 245

97 A.2d 245

117 Vt. 573

RAYMOND S. ROBERTS, Inc. v. WHITE et al.

No. 1162.

Supreme Court of Vermont.

May 5, 1953.

Barber & Barber, Brattleboro, for plaintiff.

F. J. Nash, Brattleboro, Edward C. Barry, Wilmington (Ralph Chapman, Brattleboro, on the brief), for defendants.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and CUSHING, JJ., and HUGHES, Supr. J.

CUSHING, Justice.

This is an action of contract in the common counts with specifications covering an account between the parties involving the sale of car parts and the servicing of motor vehicles and trucks for a period from November, 1947, through May, 1951. Trial was by court. Findings of act were filed and judgment was entered for the plaintiff. The cause comes here upon defendants' exceptions.

About two month before the trial Annette J. White filed a motion to be discharged as a party defendant by reason of the fact that all charges in the account were made against, and allegedly payable by, the defendant Enos R. White. This motion was brought to the attention of the court at the start of the trial, and at the conclusion of all the evidence her counsel asked if it would be proper to renew the motion to disjoin her as a party defendant, and the court replied: 'I think it is premature. I think it will have to be disposed of motion denied. It will be disposed of in the findings in the ultimate decision.' No exception was taken at the time. Later, after tentative findings had been made but before the filing of the final draft the presiding judge, in reply to a letter from Annette's counsel asking that a special exception be saved to the denial of her motion, wrote that he would endeavor to preserve her rights in this regard in the judgment order. Through oversight no such exception was noted in the judgment order.

Since the cause was one triable by jury, when tried by court it was the duty of the court to find and state the facts. V.S. 47, § 2121. Consequently the motion was inopportune, since at the time it was made, the court had not made the required findings of fact. Roberge v. Town of Troy, 105 Vt. 134, 136, 163 A. 770; Wright v. Burbee, 112 Vt. 197, 199, 22 A.2d 494. Had the record shown that the court deferred a ruling on the motion until after the facts had been found and an exception had been allowed to its denial, such exception would have been before us. Wright v. Burbee, supra. However, the same question could have been raised under the exception to the judgment, and we will discuss it under that exception and will treat the brief on the motion as applying to that exception.

The findings show that the two defendants are husband and wife. They own and operate a farm in Brattleboro. All of their real estate is held by them as tenants by the entirety. The property of both is used in the cattle business, operation of a market in Wilmington and in the conduct of a general farming operation in Brattleboro. Funds employed in the various business activities of the defendant Enos White are held in a joint account in a Brattleboro bank in the names of both defendants. Receipts and proceeds from the business transactions conducted in the farm, cattle and market enterprises are deposited in this account. Disbursements for operating expenses are made by checks drawn on the account by Annette's signing the name of defendant Enos and adding her initials. Both defendants devote their full time and all their financial resources to the family enterprises. Both share in the profits and losses by way of their joint estate. All the motor vehicles used in conducting these enterprises have been registered in the name of Annette for a long time. None were registered in the name of Enos. These are the vehicles referred to in plaintiff's account. They were taken to the plaintiff's garage by Enos for servicing and repairs, and were returned to him. Prior to December 2, 1949, the account was carried in the name of Enos White alone. Thereafter when a new bookkeeping system was established in the plaintiff's office, charges were posted on a ledger sheet made out in the names of both defendants, but the individual repair sheets were listed in the name of Enos alone. After December 2, 1949, monthly statements were prepared from data on the ledger sheet and mailed to Enos, until May 25, 1951, when the parties ceased doing business with each other.

The only finding recited above that is questioned in defendants' brief and claimed to be supported by an exception is that 'Both share in the profits and losses by their joint estate.' The exception referred to was to three separate and distinct statements in the findings, one of which was the one just quoted. Nowhere in their brief do the defendants attempt to show that the other two statements are unsupported by the evidence. Consequently the exception as to them is waived. Because all three statements in the general exception are not shown to be unsupported by the evidence, the whole exception is without avail. Little v. Loud, 112 Vt. 299, 23 A.2d 628; Twin City Printery, Inc., v. Greiner, 117 Vt. 93, 85 A.2d 500. We have, however, examined the transcript, and find that the quoted finding is supported by the evidence.

It is difficult to follow defendants' brief, because it disregards the rule that where there is no available exception to the findings we will not look back of them to ascertain whether the evidence supports the judgment, Little v. Loud, supra, and keeps referring to the evidence. The only question is whether the findings support the judgment against Annette, and we must assume in favor of the judgment that the trial court inferred such facts from the other facts certified as it ought to have done, or might fairly have done. Barre City Hospital v. Town of St. Johnsbury, 117 Vt. 5, 7, 83 A.2d 600; Labor v. Carpenter, 102 Vt. 418, 422, 148 A. 867.

Although the defendants insist that they were not partners, their argument is based almost entirely upon what they claim the evidence tends to show. No adequate attempt is made to show that the court might not have fairly inferred from the facts found that the defendants were partners. Tenancy by the entirety and the sharing of gross returns do not of themselves establish a partnership, but a receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business. V.S. 47, § 6068, § 7 of the Uniform Partnership Act. An agreement to share the profits and losses of an adventure is an essential element of a partnership, and, ordinarily, is sufficient to constitute the parties to such agreement partners. Johnson & Co. v. Marsh and Ufford, 111 Vt. 266, 271, 15 A.2d 577, 131 A.L.R. 502. Such joint interest may result even though one party furnishes the capital or stock and the other contributes his labor and skill. Sheldon v. Little, 111 Vt. 301, 305, 15 A.2d 574, 137 A.L.R. 1; Brigham v. Dana, 29 Vt. 1, 10. Where the rights of the parties inter se merely are concerned, and no question as to third parties is involved, the criterion to determine whether the contract is one of partnership or not must be: what did the parties intend by the contract which they made as between themselves? This intention may be shown by their express agreement or inferred from their conduct and dealings with one another. Sheldon v. Little, supra, 111 Vt. at page 304, 15 A.2d 574. It is important to note that it is not of the essence of a partnership that the parties to it should have known that their contract in law created a partnership. If the parties intend to...