Dame v. Kempster

15 N.E. 927, 146 Mass. 454, 1888 Mass. LEXIS 278

• Court: Massachusetts Supreme Judicial Court
• Decided: March 12, 1888
• Status: Published

Opinion

Morton, C. J.

The Superior Court correctly held that the agreement between the defendants made them partners. By it they were to carry on the business of manufacturing and selling roller skates, under the name of the Kempster Roller Skate Company. Faxon was to furnish the capital, and to have the general charge of the financial department of the business, and of buying materials and selling skates; each party was to receive a certain compensation ; and then it is provided thatCl the net profits resulting from the manufacture and sale of said skates, after deducting expenses, including the special compensation of the parties as above provided, shall be divided equally among the parties hereto.” It is further provided, that, if Faxon should fail to furnish the necessary capital, the other parties may assume the management and control of the business in his place. It is impossible to construe this agreement so as to hold that Faxon was the only principal in the business, and that the other defendants were his agents.

On the contrary, it is clear that the materials purchased and the skates manufactured were the property of the three defendants, and that they shared in the profits of the business, and to some extent at least in the losses. Each defendant is entitled to a share of the profits as profits, and he has a lien upon them and upon the stock as against the private creditors of either of the other defendants. In other words, there is in the three defendants a community of interest in the property or stock engaged in the business, and a community of interest in the profits. This, according to all the authorities, made them partners.

Exceptions overruled.