Snell v. Land1

• Decision Date: 11 May 1891
• Citation: 27 N.E. 707,138 Ill. 55
• Parties: SNELL v. DE LAND.
• Court: Illinois Supreme Court

138 Ill. 55

27 N.E. 707

SNELL

v.DE LAND.¹

Supreme Court of Illinois.

May 11, 1891.

Error to appellate court, third district.

Thos. F. Tipton, for plaintiff in error.

Moore & Warner, for defendant in error.

SHOPE, J.

This is a bill filed by the appellee, in the De Witt circuit court, for a settlement of alleged partnership affairs, and for a division of assets of the firm. It is alleged that about January 1, 1875, the parties entered in to a copartnership for an indefinite time for the purpose of buying, selling, improving, farming,and leasing land, and doing a general trading business, by which they were to contribute equally in time, labor, and money, and share equally in profits and losses; that in pursuance thereof they purchased certain lands described, in Shelby and De Witt counties, 123 mules, and other personal property, consisting of farming implements, etc.; that they have expended and received large sums of money in and from the business; that complainant has paid more, and received less, than his share; and defendant has paid less, and received more, than his; and that they cannot settle the affairs of the copartnership between themselves. It prays for a dissolution, for a partition and division of the property on hand, and for an accounting under the direction of the court, and for general relief, ect. The answer of appellant admitted the purchase, jointly, of the property mentioned, and for the purposes stated in the bill, but denied that there was ever a partnership in respect to it, or that he was indebted to the complainant on account of it, or of any business growing out of it, or had refused to account and settle with him of and concerning the same, and expressed his consent to a partition and division of the property, and to an accounting, as prayed by the bill. He also filed a cross-bill, alleging a balance due him, and the neglect and refusal of the complainant in the original bill to account, and asking affirmative relief. Under orders entered by consent of the parties, the real estate and personal property on hand were partitioned and divided, and the incumbrances on the land apportioned between them, to their satisfaction; and a special master, agreed on, was appointed to take the proofs and state an account. It appears from the record, and the court found, that the parties had a settlement in the year 1877, but not afterwards. Many items claimed on each side were contested, but the principal conflict was in reference to the relation of the parties. Appellee had been in the control and use of the land jointly owned by them; and what was the character and extent of his liability for the use of appellant's half; whether he was to be charged as tenant in common, as trustee, or copartner; and whether he was entitled to compensation for services in conducting the business, and for money expended in improvements, etc.,-were the principal matters of contention. Appellant insisted that he and appellee were not partners, and that appellee was liable to him for the reasonable rental value of his half of the land, without regard to the amount received, and had no right to payment for services or improvements; and if it should be found that he was a partner, appellee would be entitled to no compensation without an express contract to that effect, and that there was no such agreement. Appellee contended that they were partners; that there was an express agreement for compensation; and that, being a partner, he was liable only for the exercise of good faith and reasonable diligence in the management of the affairs of the copartnership, and for net profits realized. The cause was referred to a special master selected by the parties, who, after taking the proofs, declined to pass upon the question of partnership, for the reason that he was not a lawyer, and filed his report, stating the account and the alternative; showing, if they were held partners, a balance due from appellee to appellant of $56.03, and disallowing the claim of appellee for compensation; and if they were not partners, a balance owing to appellant from appellee of $4,179.07. Exceptions were filed by both parties, none of which were allowed by the master. Upon hearing, the court found that in respect of the matters and affairs in controversy the parties were partners; sustained an exception to so much of the report as disallowed appellee compensation, and found him entitled thereto; and added to the account of appellant the sum of $630, as being part of such compensation equitably due from and to be paid by him; and restated the balance by finding due from appellant to appellee $573.97 being the amount allowed as compensation to be paid by appellant, less the $56.03 found by the master to be due to appellant on his accounting between the parties as partners. The court overruled all of the exceptions, and rendered a decree accordingly. This decree was affirmed by the appellate court. 32 Ill. App. 68.

No good purpose can be served by a discussion of the evidence at length, and it will suffice that we have carefully considered it, and are of opinion that the preponderance supports the decree both as to the fact of partnership, and that an express agreement was made for compensation to appellee for his management and control of the partnership affairs. We cannot say, therefore, that the court erred in its findings in these respects, or in fixing the amount of the compensation to be charged to appellant's account. The finding was as between the partners, and it was entirely proper for the court to render its decree against appellant for his half of the service,...