Willis v. Crawford
| Decision Date | 04 March 1901 |
| Citation | 38 Or. 522,63 P. 985 |
| Parties | WILLIS v. CRAWFORD. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Douglas county; H.K. Hanna, Judge.
Action by William R. Willis against A.M. Crawford. From a judgment in favor of plaintiff, defendant appeals. Reversed.
This is a suit to dissolve an alleged partnership and for an accounting. The transcript shows that one J.T.C. Nash was the owner of a mine in Douglas county, Or., which he sold to the Victory Placer-Mining Company, a corporation, receiving therefor its bonds in the sum of $90,000, and an assignment of a cause of action instituted by one W.H. Harris against the International Nickel-Mining Company to recover the sum of $10,000. A cross bill having been filed in said action making Nash a party, he retained the plaintiff and defendant as his attorneys, who secured for him the amount involved receiving as fees for their services the sum of $350 each. They also commenced a suit for Nash against the Victory Placer-Mining Company, and secured a decree making their client's bonds a first lien upon the property so sold by him. The corporation having made default in the payment of the interest due on its bonds, and the mine having been operated at a loss, actions were commenced against said corporation by its creditors, whereupon the plaintiff and the defendant, as Nash's attorneys, intervened, and secured the appointment of a receiver. A sale of said bonds having been negotiated for $30,000, of which sum $500 was paid in cash, and promissory notes of the purchasers thereof were executed for $5,500, payable April 5th of that year, and $2,000 on the 5th of each month thereafter until and including April, 1898, Nash, on February 27, 1897, without plaintiff's knowledge, executed to Crawford a writing promising to pay him one-third of the purchase price, when paid, in consideration of the latter's service for several years as an attorney and in securing the sale of said bonds; and it was stipulated that from the sum so received Crawford would pay Willis all sums due him for service rendered Nash. Willis, on March 29, 1897, received from Nash a check for $600, and thereafter the defendant paid him the sum of $150 on account of his attorney fees, the latter having received $750 for the same service. The promissory notes evidencing the purchase of said bonds having been paid as they severally matured, the defendant, in pursuance of Nash's agreement, received and retained the sum of $8,500. In July, 1898, the plaintiff, having found in the defendant's office, joining his in the same building at Roseburg, Or., the memorandum executed by Nash, took possession thereof without the defendant's knowledge, and thereupon commenced this suit, alleging that Crawford was his partner in the trial of said causes for Nash; that the defendant collected all sums paid on account of attorney fees, and falsely represented that he had received only $1,800 therefor; that no settlement had ever been made respecting said attorney fees, and the defendant refuses to render a statement of the terms of the agreement entered into with Nash, or to give a correct account of the sums he has received as fees in pursuance thereof; and praying a decree for one-half the sum which it may be found the defendant has received. A demurrer to the complaint on the ground that the plaintiff had a plain, speedy, and adequate remedy at law having been overruled, an answer was filed, denying the material allegations of the complaint, and averring that about April 5, 1898, Nash settled with the plaintiff, and paid him the sum of $750 in full satisfaction of his demand since which time he rendered no service for Nash; and also alleging that the plaintiff has a full, complete, speedy, and adequate remedy at law for the redress of his alleged wrongs. The reply having put in issue the allegations of new matter in the answer, the cause was referred to Ira B. Riddle, who took the testimony, from which the court found that the plaintiff and defendant were partners in the business transacted for Nash; that the defendant entered into an agreement with Nash whereby he received and retained the sum of $8,500, which agreement inured to the benefit of said partnership, and that the plaintiff was entitled to recover from the defendant the sum of $4,250; and, having rendered a decree in accordance therewith, the defendant appeals.
J.C. Fullerton and E.B. Watson, for appellant.
Dexter Rice and W.R. Willis, for respondent.
It is contended by defendant's counsel that no partnership existed between the plaintiff and the defendant; that, if the latter received any money from Nash to which the plaintiff was entitled, he had an adequate remedy at law for the recovery thereof; and that the court erred in holding that equity had jurisdiction of the cause. It is not alleged in the complaint, and the evidence fails to show, that the plaintiff and defendant were general partners, though each paid one-half the cost of the fuel used and of the rent of the separate rooms occupied by them, and a city license was issued to them as partners to practice their profession as attorneys at law in Roseburg, Or., from January 1, 1896, to July 1, 1897; but Crawford testifies, and he is not contradicted in this respect, that the license was issued in the form indicated so as to save the cost of one license. The parties not being general partners in the practice of law did the joint service rendered by them for Nash establish inter se such a special partnership as would authorize a court of equity to assume jurisdiction of the cause by reason of their relation of trust and confidence? A partnership is an agreement entered into between two or more persons to unite their labor, skill, money, and property, or either or all of them in a lawful enterprise for their mutual account. Story, Partn. § 2; 17 Am. & Eng.Enc.Law, 828; Cogswell v. Wilson, 11 Or. 371, 4 P. 1130; Kelley v. Bourne, 15 Or. 476, 16 P. 40; Dawson v. Pogue, 18 Or. 94, 22 P. 637, 64 L.R.A. 176; Flower v. Barnekoff, 20 Or. 132, 25 P. 370, 11 L.R.A. 149. Whether the parties are partners inter se must be determined in a suit instituted for that purpose, from their intention to enter into that relation, as legally ascertained from their agreement to that effect. 17 Am. & Eng.Enc.Law, 832; Kelley v. Bourne, supra; Klosterman v. Hayes, 17 Or. 325, 20 P. 426; Nelms v. McGraw, 93 Ala. 245, 9 So. 719; Beecher v. Bush, 45 Mich. 188, 7 N.W. 785; McDonald v. Matney, 82 Mo. 358. It is not asserted by Willis that they intended to form a partnership, and, in the absence of any testimony in this respect, their intention must be ascertained, if possible, from the evidence of their conduct. The defendant testifies that no agreement had been entered into whereby the plaintiff was to be paid one-half the money received from Nash as attorney fees, but that he had divided the sums so received equally with Willis until the latter settled with Nash respecting the amount so due him, and was thereupon discharged as his attorney. An agreement between two or more persons to divide the profits resulting from the prosecution of a business venture in which they have a common interest was once regarded as affording an accurate test of partnership; but such standard is not now deemed conclusive evidence of the existence of such relation. Cox v. Hickman, 8 H.L.Cas. 267; McDonnell v. Battle House Co., 67 Ala. 90; Culley v. Edwards, 44 Ark. 423; Smith v. Knight, 71 Ill. 148; Clark v. Barnes, 72 Iowa, 563, 34 N.W. 419; Colwell v. Britton, 59 Mich. 350, 26 N.W. 538; Clifton v. Howard, 89 Mo. 192, 1 S.W. 26; Eastman v. Clark, 53 N.H. 276; Day v. Stevens, 88 N.C. 83; Curry v. Fowler, 87 N.Y. 33; Harvey v. Childs, 28 Ohio St. 319; Smelting Co. v. Smith, 13 R.I. 27. In Bloomfield v. Buchanan, 13 Or. 108, 9 P. 912, it was held that it was not necessary that there should be an express stipulation to share the profit and loss of a business enterprise in order to form a partnership; Mr. Justice Thayer saying, "If it were understood between the parties that there was to be a communion of profit, it would be a partnership." The language thus quoted, when considered by itself, would seem to imply that an agreement to divide the profits of an enterprise in which the parties had an interest necessarily created a partnership; but, when the utterance is read in connection with the...
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