Sodiker v. Applegate

• Citation: 24 W.Va. 411
• Parties: SODIKER v. APPLEGATE.
• Decision Date: 05 July 1884
• Court: West Virginia Supreme Court

24 W.Va. 411

SODIKER v. APPLEGATE.

Supreme Court of West Virginia.

July 5, 1884

Submitted Jun. 5, 1884.

1. To constitute a partnership between parties who share in the profits, the interest in the profits must be mutual--each person must have a specific interest in them as a principal trader; he is not a partner merely because he receives a part of the profits as compensation for his services. (p. 415.)

2. In every partnership there is a community of interest, but every community of interest does not create a partnership. In all cases of partnerships there must be a participation as principal. If the persons merely occupy the relation of principal and agent, or employer and employe, no partnership can be predicated upon the fact that such agent or employe receives a share of the profits for his services or other benefits conferred. (p. 415.)

3. A employed B. to run and operate his grist-mill and agreed that for his services B. should have one half the tolls or profits derived from the mill; this did not create a partnership between A. and B. The agreement that B. should receive a share of the profits was simply a mode of payment and measure of his compensation.

The facts of the case are stated in the opinion of the Court.

G W. Caldwell for appellant.

J C. Wright for appellee.

Snyder, Judge:

Suit in equity brought by William Sodiker against Lewis Applegate in June, 1879, in the circuit court of Brooke county to settle the accounts of an alleged partnership between the plaintiff and defendant for running a grist and flour mill, buying and selling grain and the products of said mill. The bill avers that by the terms of the partnership the defendant was to furnish the grist-mill then owned by him and put the same in repair at his own expense, the plaintiff was to run and operate the mill, the funds for carrying on the business and keeping the mill in repair was to be furnished by the parties in equal portions and the profits were to be shared equally between them.

The defendant in his answer positively denies that any partnership of any kind existed between him and the plaintiff; he avers that while the plaintiff worked at his mill he did so as a hired hand, being without means and penniless he was employed to run the mill so long as he might do so satisfactory to the defendant and the customers of the mill. The cause was referred to a commissioner for an account, depositions taken and the commissioner reported that in his opinion no partnership existed, but, if the court should decide that the proofs established a partnership, he reported due to the plaintiff one hundred and twenty-six dollars and eighty-seven cents.

The plaintiff excepted to that part of the report which found that no partnership existed and the court by its decree of June 14, 1883, sustained said exception and decreed that the plaintiff recover from the defendant the said sum of one hundred and twenty-six dollars and eighty-seven cents and costs. From this decree the defendant appealed.

As I am clearly of opinion that no partnership existed between the plaintiff and defendant, it is only necessary to refer to the evidence in relation to that matter. The plaintiff in his deposition, after stating the terms of the partnership as alleged in his bill says: " I did grind the wheat I bought with my own money and sold the flour on my own account and got the money. The wheat that Lewis Applegate bought I ground, took the toll from, and Applegate sold the flour on his own account. All the other grain that came into the mill was disposed of in the same way." He exhibits with his own deposition, and testifies to their correctness, certain accounts for work done by him and for bills paid for repairs to the mill, for boarding hands and for money paid for wheat all of which are made out in his name against the defendant. The one half of these accounts is what constitutes the sum found by the commissioner and on which the decree against the defendant is based. There are no credits on any of these accounts and no charges of any kind in favor of the defendant. Nothing appears as to the business of the alleged partnership. No charges in favor or against it. In fact there is not in the evidence or the accounts filed anything having any relation to the affairs of any partnership or anything to show that any partnership business was done from which any profits or losses could have arisen. If any partnership existed the facts altogether fail to show it. The accounts filed and relied on by the plaintiff are simply charges alleged to be due to him individually from the defendant. They are made out not against any firm but against the defendant personally. They,...