Richardson v. Doty

• Decision Date: 19 February 1895
• Citation: 44 Neb. 73,62 N.W. 254
• Parties: RICHARDSON v. DOTY.
• Court: Nebraska Supreme Court

44 Neb. 73

62 N.W. 254

RICHARDSON

v.DOTY.

Supreme Court of Nebraska.

Feb. 19, 1895.

Syllabus by the Court.

1. The evidence held sufficient to sustain the findings of the trial court.

2. The provisions of the Code of Civil Procedure in regard to set-off are not exclusive. The insolvency of a party against whom the set-off is claimed is a sufficient ground for a court of chancery to allow it in cases not provided for by statute. Thrall v. Hotel Co., 5 Neb. 295, followed.

Appeal from district court, Lancaster county; Field, Judge.

Action by Willis T. Richardson against Ira E. Doty. Judgment for defendant, and plaintiff appeals. Affirmed.Marquett, Deweese & Hall, R. S. Norval, and Geo. P. Sheesley, for appellant.

G. M. Lambertson and Steele Bros., for appellee.

IRVINE, C.

This was an action for an accounting between partners, the plaintiff, Richardson, alleging that about October 10, 1886, he and Doty entered into a partnership under a verbal contract, for the purpose of building railroads and dealing in supplies for the construction of railroads; that Doty was to devote his entire time to superintending the work; and that the profits were to be shared equally. He then sets up three separate pieces of work performed during the existence of the partnership. One was the construction of a line of railroad known as the “Culbertson Line,” which he says that Doty, in disregard of his contract, neglected in such a manner as to cause a loss of $2,000. Another was the construction of a line known as the “Beaver Line,” which he says yielded a profit of $7,000, which Doty neglected and refused to account for. The third was the construction of bridges on a line known as the “Wood River Line,” and on which he alleges the profit amounted to $4,000, which Doty neglected and refused to account for. Richardson then avers that on May 3, 1890, a new contract was entered into, whereby the plaintiff was to receive two-thirds of the profits, and the defendant one-third, except as to profits derived from selling supplies, which were to be equally divided, and avers that under this contract a line known as the “White Wood Line” was constructed; but the work was performed by Doty negligently, causing a loss of $4,000. Doty answered, denying that the contract was as alleged, and averring that the partnership only extended to work performed on contracts made directly with railroad companies, and not to work done on subcontracts with principal contractors.He then averred that the Beaver Line and Wood River Line were subcontracts in his own favor, and entirely outside the object of the partnership, and denied that he undertook to devote his time to the work of the partnership. He admits the construction of the Culbertson Line, but denies that he was guilty of any negligence. He admits the contract of May 3, 1890, and the construction of the White Wood Line thereunder, and denies that he was guilty of any negligence therein. The answer then proceeds to allege that Doty became surety on certain notes of Richardson, and was compelled to pay the same, on which account he prays judgment for $5,387.49, with interest. The reply admitted the allegations of the answer in regard to the set-off, but averred that they did not constitute any defense to the action. The court found that the subcontract work was not within the scope of the partnership; that, on the White Wood Line, Doty should...