Ware v. Chatham

• Decision Date: 15 December 1932
• Docket Number: No. 2760.,2760.
• Citation: 56 S.W.2d 229
• Parties: WARE v. CHATHAM.
• Court: Texas Court of Appeals

56 S.W.2d 229

WARE v. CHATHAM.

No. 2760.

Court of Civil Appeals of Texas. El Paso.

December 15, 1932.

Rehearing Denied January 5, 1933.

Error from District Court, Dallas County; Towne Young, Judge.

Suit by R. E. Chatham against G. W. Ware, in which defendant set up cross-action. To review the judgment in favor of plaintiff, defendant brings error.

Reversed and remanded.

Claud C. Westerfeld, of Dallas, for plaintiff in error.

Fred J. Dudley & Associates, of Dallas, for defendant in error.

HIGGINS, J.

Chatham brought this suit against Ware, and, from an adverse judgment, the latter prosecutes this writ of error. The parties will be designated as they were in the trial court.

The allegations of the petition, briefly stated, are to the following effect: In October, 1928, the parties agreed to form a partnership, each to contribute $2,000 to the partnership capital; defendant was also to furnish a farm owned by him upon which the partnership business would be conducted and would make certain repairs to a house upon the land and repair the fences to protect the poultry to be raised thereon. Defendant employed plaintiff to make the said repairs upon the house and fences and agreed to pay plaintiff for his labor in so doing and for the materials purchased by plaintiff to make such repairs. Defendant also agreed to pay plaintiff for such money as he might expend in feeding and caring for certain stock upon the land belonging to defendant. For labor and expenditures for all such purposes defendant became liable to plaintiff for $550.14.

Beginning in February and continuing until July in 1929, plaintiff began to advance his agreed $2,000, and for the purpose of establishing the poultry business and fulfilling his agreement he paid out cash as follows:

                Equipment and merchandise and
                  stock, ............................ $1,158.01
                Labor, ..............................    374.57
                Labor for chicken houses (additional)
                  ...................................    144.97
                Total, ..............................  1,677.55
                

The petition then admits credits to which defendant is entitled of $200, on the claim of $550.14 for labor and materials furnished as aforesaid, and a further credit of $450 advanced on the $2,000 which defendant was to contribute to the partnership capital.

Defendant breached his agreement and demanded possession of the land whereby the enterprise became hopeless and plaintiff was forced to abandon the farm.

"This plaintiff respectfully shows to the Court that under the facts herein, that the same constituted and was a violation by the defendant of his contract to enter into a partnership with the plaintiff and that this defendant is liable to the plaintiff not only for the sums of money which was advanced by the plaintiff and the labor that he did, all for the defendant's individual account, but that this defendant is liable for the sums of money which the plaintiff advanced in good faith and in an attempt to carry out his contract, performance thereunder being prevented by the capricious and arbitrary refusal of the defendant to carry out his contract.

"That in the event it may be considered that an actual partnership was formed by reason of these facts between plaintiff and defendant, that the transactions herein were not between the parties in the relationship of partners as such and there is no necessity for any accounting, there being no complicated accounts between the parties in the relationship of partners as such and there is no necessity for any accounting, or any profits or losses in the partnership business as such, but that in the event such is necessary this plaintiff is entitled to an accounting against the defendant as a partner and in the alternative prays for such account."

The prayer was for "judgment for his debt, and damages sustained by reason of the defendant's breach of his contract with the plaintiff, that he have in the alternative a full and strict account from this defendant of the profits and losses of the partnership sustained or received," for costs and general relief.

Defendant answered by demurrers, general and special, general denial, and special pleas. In such special pleas defendant admitted they entered into a partnership to raise turkeys upon the farm, and alleged facts showing that the enterprise was launched under the management...