Wicks v. Knorr

• Decision Date: 29 July 1931
• Citation: 155 A. 816,113 Conn. 449
• Court: Connecticut Supreme Court
• Parties: WICKS v. KNORR et al.

155 A. 816

113 Conn. 449

WICKS v. KNORR et al.

Supreme Court of Errors of Connecticut.

July 29, 1931

Appeal from Superior Court, Fairfield County; Edward M. Yeomans Judge.

Action by Arthur E. Wicks against Mildred T. Knorr, administratrix and others, for money had and received, for an accounting and for other relief. Judgment for plaintiff against defendant Tobin only, and all parties appeal.

Error on plaintiff's appeal, and new trial ordered as to defendant administratrix, and error on appeal of defendant Tobin and judgment directed for him. No error on appeal of administratrix.

William F. Tammany, of South Norwalk, for appellant Tobin.

John Keogh and John T. Dwyer, both of South Norwalk, for appellant Knorr.

Edward J. Quinlan, of Norwalk, and Sheldon B. Smith, of Bantam, for appellant Wicks.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, C.J.

In 1927 Fred A. Giorchino, acting in behalf of himself, August C. Knorr, and two others, acquired certain premises in Westport known as the Compo Hills Development. Knorr was engaged in a grain business in association with Harry Tobin. Knorr gave considerable of his time to outside enterprises, but Tobin devoted all his time to the grain business and in consideration of his doing so Knorr agreed to divide with him any profits received from outside transactions; Knorr retaining one half and accounting to Tobin for the other half. Tobin, in conferring with Knorr as to possible profits from the Compo Hills Development, said he preferred a lesser sum in cash to a larger sum at some future time, and Knorr proposed to him that he sell his interest in the transaction and prospective profits therefrom. Knorr then represented to the plaintiff that Tobin had an interest in the transaction concerning the Compo Hills Development and told him that he might be able to buy the prospective profits for $5,000. The plaintiff negotiated with Tobin as to this purchase and agreed to pay that sum. Thereupon Knorr prepared a document which, under date of October 10, 1927, was signed by Tobin, as follows: " I hereby transfer to Arthur E. Wickes of Norwalk, Conn., all my rights and interest held with August C. Knorr in the Compo Hills Development at Westport. Conn. Same being one-half of the one quarter interest held by said August C. Knorr and all profits of the aforementioned one eighth interest are to be paid to said Arthur E. Wickes."

The plaintiff then paid Tobin $5,000, and the latter gave $1,000 of it to Knorr. In February, 1928, Giorchino, Knorr, and the two others owning interests in the premises organized a corporation, and 1000 shares of stock were issued by it and divided equally among them. Giorchino conveyed to this corporation such portion of the tract as had not been sold or conveyed by him, with his rights in installment contracts covering various lots in it, with certain mortgages on other lots in it, and also mortgages affecting other property held by him and others. November 6, 1928, Knorr died, owning 250 shares of the stock of the corporation. Within the period limited for presenting claims against his estate, the plaintiff presented a claim based upon his rights under his transaction with Tobin. It was disallowed. The present action was brought against the administratrix of Knorr's estate and against Tobin. The first count was based upon the disallowance of the claim presented against the Knorr estate; the second count alleged that, prior to Knorr's death, he and Tobin had received to and for the use of the plaintiff $5,000, which had not been repaid; a third count, added by amendment, set out the facts of the organization of the corporation and the ownership of the stock in it by the Knorr estate and sought to have declared and enforced an interest of the plaintiff in this stock, to have the money paid by him to Tobin adjudged a lien and charge upon Knorr's estate and the stock, an accounting, any other appropriate relief, and damages. The trial court reached the conclusion that Knorr never transferred to Tobin any part of his interest in the Compo Hills Development or the prospective profits therefrom, that Tobin had no interest in the Compo Hills Development which he might or did convey to the plaintiff, and that no trust had been proved. Solely upon this basis it gave judgment for the plaintiff to recover from Tobin the full sum paid to him on the purchase of his interest in the transaction, with interest, and for the defendant administratrix. From this judgment all parties have appealed.

The appeal of the administratrix merely seeks corrections in the finding. None of them which we could make would affect the legal rights of the parties as they are fixed by the facts found, which we have stated.

The agreement between Knorr and Tobin for a division of the profits from the former's outside transactions was merely an agreement to account and pay over to the latter one-half of those profits. To these transactions Tobin contributed nothing in money, property, or services; he in no way participated in them or had any control over them; the essence of the agreement was that Tobin was to be compensated for the disproportionate amount of time and effort he was giving to the grain business by a sum measured by one-half of Knorr's profits from outside transactions. In no sense could Tobin be considered as a joint adventurer with Knorr in them. Dolan v. Dolan, 107 Conn. 342 349, 140 A. 745; Ross v. Burrage, 233 Mass. 439, 448, 124 N.E. 267; Hutchinson v. Birdsong, 211 A.D. 316, 207 N.Y.S. 273, 275. To apply the language of the court in Wilson v. Maryland, 152 Minn. 506, 510, 189 N.W. 437, 439, " to constitute a joint adventure two parties must combine their property, money, efforts, skill or knowledge in some common undertaking. These parties owned nothing in common and transacted no business in common [other than the grain business] assumed no obligation to do so." Knorr and Tobin were not joint adventurers as regards the Compo Hills Development. The agreement being merely to divide profits it was not within the statute of frauds, even though these were to be realized from real estate transactions. Maguire v. Kiesel, 86 Conn. 453,...