Thornton v. McDonald
| Citation | 33 S.E. 680,108 Ga. 3 |
| Parties | THORNTON v. McDONALD. |
| Decision Date | 10 June 1899 |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When an affidavit to foreclose a laborer's lien upon the property of an alleged partnership is met by a counter affidavit filed by one of the persons alleged to be a member of the firm, denying the existence of the partnership, and also any indebtedness of the affiant to the plaintiff, and that any lawful demand had been made, the latter, in order to recover, must prove that there was a partnership, that it was indebted to him as such for labor, and that he had a valid lien upon its property, and that a legal demand for payment had been made and refused.
2. An agreement to the effect that the owner should furnish "the mills, the wagons, the mules, and the hands," and another person owning no interest in any of the property "should give the business [his] personal attention in looking after it, and *** have for [his] services one-half of the profits," does not constitute such persons partners in operating a sawmill. Such an agreement creates the relation of employer and employe between them, but does not create a joint interest in the profits.
3. When, in a case of the nature above indicated, the undisputed evidence established such a state of facts as that stated, a mere admission by the owner of the business that the employe was his partner would not be sufficient to establish the fact that the partnership really existed, it not appearing that the party setting up the partnership had ever acted upon or been misled by such an admission.
4. Under the evidence set out in the petition for certiorari the verdict was unwarranted, and the judge erred in not sanctioning the petition.
Error from superior court, Early county; H. C. Sheffield, Judge.
Action by J. B. McDonald against J. T. Thornton and others. There was a judgment for plaintiff, and J. A. Thornton petitioned for certiorari to review it, which was denied, and he brings error. Reversed.
J. L Boynton and G. D. Oliver, for plaintiff in error.
Powell & Powell, for defendant in error.
A Thornton, the plaintiff in error, presented a petition to the judge of the superior court of the Pataula circuit, alleging the following facts: In June, 1898, McDonald made oath before a justice of the peace that Thornton Mills, which was alleged to be a co-partnership composed of J. T. Thornton, J. A Thornton, and J. T. Alsop, was indebted to affiant in a named sum for labor performed by him at said mills under a contract with J. T. Alsop, averring a demand, and claiming a lien on the sawmill, machinery, etc., there located. Under this proceeding a fieri facias issued against the mills, machinery, lumber, shingles, etc., on which the lien was claimed for the amount sworn to be due. That this fi. fa. was levied on the property, and J. A. Thornton filed a counter affidavit, denying the alleged co-partnership, as well as the plaintiff's lien, claiming sole ownership of the property, and denying the right of Alsop to create a lien on the same. That the issue thus formed came on for trial in the justice's court before a jury. At such trial Alsop testified that he considered himself a partner of the Thornton Mills, which are located in Early county. That J. T. Thornton, J. A. Thornton, and witness composed the firm of Thornton Mills. Witness employed plaintiff to work at the mills, and agreed to pay him one dollar a day, and plaintiff had demanded payment for the services after his wages became due. Witness testified that his contract with J. T. Thornton and J. A. Thornton was that the Messrs. Thornton were to furnish the mills, the wagons, the mules, and hands. That he was to give the business his personal attention, and was to have for his services one-half of the profits. The plaintiff lived in Alabama, and the witness wrote and hired him, because he was an expert machinist. Witness left the mills when the sheriff had levied on the property under a lien in favor of Hightower & Co. It was after this levy that the plaintiff made the demand. All demands made before that time were properly met. J. A. Hightower testified for the plaintiff that in the storehouse of Hightower & Co. he heard J. A. Thornton tell T. E. Hightower that Alsop was his partner. This occurred on the day that Keaton went to Blakely to foreclose a lien on the mills in favor of Hightower & Co. At this point in the trial of the case defendant moved to dismiss the levy on several grounds named. The motion to dismiss was overruled. In rebuttal J. A. Thornton testified that neither J. T. Thornton nor J. T. Alsop have any interest in the property on which the lien is claimed. Such property belongs to witness. Neither of the persons named are his partners. Under the contract with Alsop, witness was to furnish the mills, hands, wagons, mules, etc., and Alsop was to put his services in the business, and witness was to give him for his services one-half of the net proceeds. Alsop had no authority to hire hands or to contract debts in conducting the business. Witness lives in Calhoun county, and visited the mills once or twice every two weeks or oftener. On the occasion of one of his visits he found the plaintiff at the mills, and told Alsop that he had no use for him, and that he would not pay him. That Alsop told witness that he (Alsop) had hired the plaintiff to supervise the business generally, and that he would pay him. Alsop was not manager. Did not know that he claimed to be a partner or manager until he was notified that Hightower had levied on the mills for a debt of Alsop. On the occasion testified to by Hightower, T. E. Hightower told witness that he had an account against Alsop, and asked if Alsop was my partner. Witness told him he was not. That he had nothing to do with Alsop's debts; nor did he ever tell any one that Alsop was his partner. Witness discharged Alsop the day before. At that time the mills had not been levied on, nor did witness know that any one claimed a lien against his property. Keaton testified for the plaintiff that ...
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