Pratt v. Frazer

129 S.W. 1088, 95 Ark. 405, 1910 Ark. LEXIS 200

• Court: Supreme Court of Arkansas
• Decided: June 20, 1910
• Status: Published

Opinion

Hart, J.,

(after stating the facts). “Where a cause has proceeded to final adjudication without judgment of the court upon demurrer filed in same, the demurrer will be considered to have been waived.” Kiernan v. Blackwell, 27 Ark. 235. As far as the record discloses, the court was never called upon to rule upon the demurrer, and the cause may be said to have proceeded to final adjudication in the chancery court by consent of the parties.

The rule is well settled that it is only where the complaint discloses on its face the court’s total lack of jurisdiction that the defect can not be waived and can not be cured by consent, and may be raised for the first time in the appellate court. Conceding, without deciding, that the appellant had a right to have the cause transferred to the law court, he waived that right by voluntarily submitting to a trial of all the issues by the chancery court. Love v. Bryson, 57 Ark. 589; Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, and cases cited.

Under the facts set out in the statement of the case, the agreement entered into between the parties to the suit for the purpose of selling the insurance stock constituted a partnership. Culley v. Edwards, 44 Ark. 423; Buford v. Lewis, 87 Ark. 412; Rector v. Robins, 74 Ark. 437; Herman Kahn Co. v. Bowden, 80 Ark. 23.

In the case of Smith v. Hill, 13 Ark. 173, the court held: (quoting from syllabus) : “A partnership for the practice of law is legal, and, as in other partnerships, the act of one partner in the professional business is the act of all the partners. Every responsibility incident to other partnerships in general attaches to legal partnerships as well as corresponding rights.” In like manner the employment of the services of persons to sell the stock of insurance companies is a legitimate business, and a partnership may be formed for that purpose. Such firms are denominated in law non-trading partnerships, or partnerships in occupation. 1 Bates, Partnership, § 329.

Here appellant and appellee entered into such a partnership. They' agreed to share equally the profits and losses. They received a sum as compensation which depended upon the amount of sales of stock they made. , The expenses of conducting -the business were first to be deducted, and then the profits, if any, were to be divided equally between them. The word “commission” as used in the contract, evidently was intended to mean the compensation they were to receive for their services, just as the compensation paid to a firm of attorneys is usually called their fee. The $1 additional which the company agreed to pay appellant as a bonus was but an additional compensation for the extra exertion. In this, as well as in other partnerships, the members -must be loyal to each other. Good faith required that appellant should make known to appellee the fact that he was receiving e^ctra compensation, and, in the absence of an_ agreement to the contrary, the partnership having been entered into upon equal terms, each partner was entitled to receive an equal division of the profits made by the firm whether the contract was made in the name of the firm or in that of one of the individual members. This is so because, from their relationship, the partners are agents for the firm, and what is done by either in furtherance of the partnership business is regarded as the act of the firm. White v. Smith, 63 Ark. 513; Boqua v. Marshall, 88 Ark. 373.

The decree will be affirmed.