Aldrich v. Lewis

60 Miss. 229

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The allegations of the bill are that the complainant built on the land of the defendants a grist and flouring mill, under an agreement that each party should contribute one-half of the amount requisite for its erection and equipment with necessary machinery, and that when completed it should be operated in copartnership for nine years; the net profits to be equally divided as they accrued, and at the expiration of the time the defendants to repay to complainant the sum originally advanced by him, with interest at the rate of seven per cent per annum. Complainant was to give his personal attention to carrying on the business, and defendants were to furnish one skilled operative to assist him. Under this agreement the mill was built and equipped at a total cost of seven thousand dollars, one-half of which was, as agreed, advanced by each party. The nine years have now elapsed and the partnership has expired by limitation. During its existence the net profits were regularly and equally divided as they accrued, and it is expressly stated that no demand is preferred as to them. Defendants failed during a portion of the time to furnish the assistant, but by agreement paid complainant ■fifty dollars per month in lieu of the assistant. There remains due him on this contract the sum of forty-seven dollars. The bill is filed to collect this amount and also the sum of thirty-five hundred dollars, being the amount contributed by complainant in the erection and equipment of the mill, with seven per cent interest thereon. It seeks an account as between partners, and prays for the establishment of a lien on the real estate for the decree to be rendered, and for the sale of the property for its satisfaction.

The demurrer is to the jurisdiction of a court of equity, on the ground that complainant has a plain, adequate, and complete remedy at law. It was well taken, and should have been sustained. The only partnership alleged was as to operating the mill, and any demand as to that is disclaimed.

The agreement as set out did not make the parties partners in the mill property. The sum advanced by complainant towards its erection was one of the inducements to the formation of the partnership, and led up to it, but was not embraced in it. It was distinctly made an outside debt by agreement. It might, perhaps, have been taken into any partnership accounting that became necessary between them ; but all partnership matters have been settled. It was at most the contribution of one partner to the capital stock of the enterprise, and if placed upon that, the most favorable ground possible for complainant, should, after a settlement of the profits and losses of the business, have been made the subject of an action at law. There is no allegation that there were any partnership debts.

As to the mill and machinery there was no community of ownership, but it was agreed that they should remain the sole property of the defendants, and that the complainant should become their creditor for the amount contributed in their erection. So also as to the amount due by reason of the failure of the defendants to furnish the assistant. By agreement the sum due for this was fixed and ascertained so as to preclude the necessity of an account, and make the one a mere ordinary debtor of the other. Morgan v. Nunes, 54 Miss. 308 ; Pars. on Part. 270 to 277.

There is no element of partnership in the matters involved, wherefore the decree is reversed, the demurrer sustained, and the bill dismissed.