Walker Co. v. Burgess

• Decision Date: 16 January 1930
• Citation: 153 Va. 779
• Court: Virginia Supreme Court
• Parties: WALKER, MOSBY AND CALVERT, INC. v. C. L. BURGESS.

Page 779

153 Va. 779

WALKER, MOSBY AND CALVERT, INC. v. C. L. BURGESS.

Supreme Court of Virginia, Richmond.

January 16, 1930.

Absent, Chichester and Epes, JJ.

1. PARTNERSHIP — What Constitutes a Partnership — Construction of Unambiguous Contract — Section 4359 of the Code of 1919 — Case at Bar. — In the instant case plaintiff based his right of recovery on the existence of a partnership between the defendant and one S., evidenced by a contract between them. There being no ambiguity in the written instrument evidencing the alleged partnership which calls for the introduction of parol evidence to explain the existence or non-existence of a partnership relationship it must be determined by the terms of the instrument relied upon, construed in the light of the provisions of section 4359 of the Code of 1919, which defines a partnership as "an association of two or more persons to carry on as co-owners a business for profit."

2. PARTNERSHIP — What Constitutes a Partnership — Section 4359 of the Code of 1919 — Contract between a Landowner and Another for the Construction of Certain Houses by the Other on Real Estate Belonging to the Landowner — Business to be "Carried on" — Case at Bar. — In the instant case plaintiff based his right of recovery on the existence of a partnership between the defendant and one S., evidenced by a contract between them. This contract failed to disclose any language which clearly indicated that defendant and S. were associated in business. The language employed indicated that defendant entered into a contract with S. for the construction of certain houses not to exceed in cost a certain sum, that S. was to "erect and complete" the buildings, that is, perform a "turn-key" job, and receive compensation for his services by a share of the profits when the houses were sold. There was no language in the agreement descriptive of the business to be "carried on."

Held: That the contract did not establish a partnership under section 4359 of the Code of 1919.

3. PARTNERSHIP — What Constitutes a Partnership — Section 4359 of the Code of 1919 — Contract between a Landowner and Another for the Construction of Certain Houses by the Other on Real Estate Belonging to the Landowner — Sharing of Profits Alone. — In the instant case plaintiff based his right of recovery on the existence of a partnership between the defendant and one S., evidenced by a contract between them. All that defendant agreed to do according to the contract was to put up certain lots and furnish the cash capital for the erection of houses upon them. All that S. agreed to do was to erect the houses. For this service S. was to be paid, after a sale of the property, fifty per cent of the net profits.

Held: That this did not constitute a partnership between defendant and S. under section 4359 of the Code of 1919.

4. PARTNERSHIP — What Constitutes a Partnership — Sharing of Profits Alone. — While in some jurisdictions it was formerly held that the sharing of profits is a conclusive test of partnership, this holding has never prevailed in this State, as is evidenced both by decision and statute.

5. PARTNERSHIP — What Constitutes a Partnership — Section 4359 of the Code of 1919 — Contract between a Landowner and Another for the Construction of Certain Houses by the Other on Real Estate Belonging to the Landowner — Carrying on a Business for Profit — Single Act — Case at Bar. — In the instant case plaintiff based his right of recovery on the existence of a partnership between the defendant and one S., evidenced by a contract between them. All that defendant agreed to do according to the contract was to put up certain lots and furnish the cash capital for the erection of houses upon them. All that S. agreed to do was to erect the houses. For this service S. was to be paid, after a sale of the property, fifty per cent of the net profits. The agreement did not contemplate carrying on a business for profit, but only contemplated the doing of a single act.

Held: That this did not constitute a partnership between defendant and S., under section 4359 of the Code of 1919.

6. PARTNERSHIP — Section 4359 of the Code of 1919 — "Carrying on a Business for a Profit" — Single Transaction. — "Carrying on" a business is a well defined term and means the conduct of a business for a sustained period for the purposes of livelihood or profit and not merely the carrying on of some single transaction.

7. PARTNERSHIP — What Constitutes a Partnership — Section 4359 of the Code of 1919 — Co-ownership — Case at Bar. — Section 4359 of the Code of 1919 defines a partnership as an association to carry on as co-owners a business for a profit. In the instant case plaintiff based his right of recovery on the existence of a partnership between the defendant and one S., evidenced by a contract between them. Under this contract defendant was to furnish certain lots and the capital to erect houses upon them. S. was to erect the houses and receive as compensation a percentage of the net profits when the houses were sold. There was no language which indicated that the parties were co-owners of the property.

Held: That this contract lacked the element of co-ownership necessary to constitute a partnership under section 4359 of the Code of 1919.

Error to a judgment of the Circuit Court of the city of Lynchburg, in a proceeding by motion for a judgment for money. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Aubrey E. Strode, Henry M. Sackett and Douglas A. Robertson, for the plaintiff in error.

Fred Harper, for the defendant in error.

CAMPBELL, J., delivered the opinion of the court.

This is a proceeding by notice of motion brought by C. L. Burgess against Walker, Mosby and Calvert, Incorporated, to recover the sum of $2,255.00. The notice was as follows:

"Walker, Mosby and Calvert, Incorporated:

"Take notice that on Monday, December 27, 1927, I will move the Circuit Court of Lynchburg, Virginia, for judgment against you for the sum of $2,255.00, with interest thereon from the first day of July, 1926, the said sum being due and payable to me by you for labor performed and material furnished by me, in and about the construction of three certain dwelling houses in Center View Square, in the city of Lynchburg, Virginia, under a certain contract therefor negotiated and entered into and executed as follows:

"1. Under date of September 30, 1925, you entered into a written contract with one J. W. Senseney, in words and figures as follows:

"`Memorandum of agreement, made this 30th day of September, 1925, between Walker, Mosby and Calvert, Incorporated, party of the first part, and J. W. Senseney, party of the second part:

"`WITNESSETH:

"`That the parties of the first part hereby agree to furnish three lots in Center View Square for the sum of $2,300.00. The value of the lot on the east corner of Memorial avenue and Orchard street $850.00, and the value of the two lots on Orchard street is $750.00 each; and the parties of the first part further agree to furnish the cash capital to be used in the erection of three dwellings, one on each of the said three lots, according to plans design No. 12743A, design No. 12261A, design No. 12208. The said party of the second part hereby agrees to furnish all material and labor and erect and complete said three dwellings at actual cost, and guarantees that the said three buildings shall not cost more than $10,500.00.

"`It is mutually agreed between the parties to this agreement that the said three houses shall be sold by either party to this agreement, and that the party making the sale shall have the usual commission for making each sale. The entire cost of the said property, including cost of financing and cost of commission on sales shall be accurately kept and when all three buildings have been sold the net profits or losses shall be divided equally between the parties to this agreement as follows:

"`50% to J. W. Senseney and 50% to Walker, Mosby and Calvert, Incorporated.

"`WALKER, MOSBY AND CALVERT, INC. (Seal)

"`BY A. W. MOSBY, Vice-President.

"`J. W. SENSENEY, (Seal)'

"2. By virtue of said contract you and the said J. W. Senseney became, and were made, partners in the construction and sale of the said three dwelling houses referred to in said contract.

"3. Sometime subsequent to the execution of the said contract of partnership, the said J. W. Senseney, acting for said partnership, entered into a contract with me, under which I was to furnish the labor and materials, for the plumbing and heating installations in said three dwelling houses, at the price of $2,825.00; — $925.00 for said labor and materials furnished for the dwelling house that became No. 506 Orchard street; $925.00 for the said labor and materials for the dwelling that became No. 510 Orchard street; and $975.00 for said...