Willis v. Crawford

63 P. 985, 38 Or. 522, 1901 Ore. LEXIS 27

• Court: Oregon Supreme Court
• Decided: March 4, 1901
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the court.

1. 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, Oregon, from January i, 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 (1 ed.), 828; Cogswell v. Wilson, 11 Or. 371 (4 Pac. 1130); Kelley v. Bourne, 15 Or. 476 (16 Pac. 40); Dawson v. Pogue, 18 Or. 94 (22 Pac. 637, 6 L. R. A. 176); Flower v. Barnekoff, 20 Or. 132 (25 Pac. 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 (1 ed.), 832; Kelley v. Bourne, 15 Or. 476 (16 Pac. 40); Klosterman v. Hayes, 17 Or. 325 (20 Pac. 426); Nelms v. McGraw, 93 Ala. 245 (9 South. 719); Beecher v. Bush, 45 Mich. 188 (40 Am. Rep. 465, 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 (42 Am. Rep. 99); Culley v. Edwards, 44 Ark. 423 (51 Am. Rep. 614); Smith v. Knight, 71 Ill. 149 (22 Am. Rep. 94); 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 (58 Am. Rep. 97, 1 S. W. 26); Eastman v. Clark, 53 N. H. 276 (16 Am. Rep. 192); Day v. Stevens, 88 N. C. 83 (43 Am. Rep. 732); Curry v. Fowler, 87 N. Y. 33 (41 Am. Rep. 343); Harvey v. Childs, 28 Ohio St. 319 (22 Am. Rep. ); Boston & Colo. Smelting Co. v. Smith, 13 R. I. 27 (43 Am. Rep. 3).

In Bloomfield v. Buchanan, 13 Or. 108 (8 Pac. 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 o-f an enterprise in which the parties had an interest necessarily created a partnership; but, when the utterance is read in connection with the context, it clearly shows that such was not the intention of the learned justice, and that the agreement referred to- did not defeat the theory of a partnership-, when so intended by the parties, because it did not provide for sharing the losses. In Webster v. Bray, 7 Hare, 159, decided in 1849, two railway companies, having contemplated the construction of a line of railroad, each retained a solicitor to represent its interests; but, the companies having consolidated, the solicitors continued to render services for the new company without any agreement as to the division of the business to- be performed by each, or in respect to- their compensation therefor. The defendant performed much more service for their client than the plaintiff, and, having received a large sum in payment thereof, the latter instituted a suit for an accounting, alleging that they were special partners, and entitled to share equally the profits incident to their joint employment. At the trial it was proven that the plaintiff remarked to the defendant, soon after their employment by the consolidated company, that in cases of a special partnership it was the custom, so far as he had observed, for the solicitor performing the service to retain from ten to twenty-five per cent, of the sum charged, in addition to the office charges and expenses, as his compensation, and the defendant replied that there could he no< misunderstanding between honorable men respecting the matter, whereupon it was decreed that the sum so received by the defendant should be divided in the manner indicated; thus apparently holding that the existence of a partnership was to- be determined from an agreement of the parties to share the profits. To the same effect, see McGregor v. Bainbrigge, 7 Hare, 164, decided in 1848, and Robinson v. Anderson, 7 De Gex, M. & G. 239, decided in 1855.

Plaintiff’s counsel rely upon the two cases last adverted to, and the remarks of Mr. Lindley in his work on Partnership (2 Am. ed., p. 118), in support thereof, wherein it is said that “If two solicitors, who are not partners, are jointly retained to- conduct litigation in some particular case, and they agree to- share the profits accruing therefrom, they become partners so far as the business connected with that particular case is concerned, but no further.” But the decision in Cox v. Hickman, 8 H. L. Cas. 267, rendered in i860, wherein it was held that an agreement entered into- between two or more persons to divide the profits resulting from a business venture did not afford conclusive evidence of a partnership, destroyed the foundation upon which the conclusion in McGregor v. Bainbrigge and Robinson v. Anderson was predicated, and hence the text relied upon to support the decree herein is of little value in determining the question of partnership inter se. Every partner is a principal having a joint interest in the property and business of the firm of which he is a member. He is also an agent of each of his associates therein, and a communion of profit and loss is the test of his relationship towards them: 17 Am. & Eng. Enc. Law (1 ed.), 829. Upon the dissolution of a partnership by the death of a member the right to make contracts, incur liabilities, manage the whole business, and dispose of the whole property, passes to the surviving members, and not to the representatives of the deceased: Dwinel v. Stone, 30 Me. 384; Donnell v. Harshe, 67 Mo. 170. In Finckle v. Stacy, Macn. Sel. Cas. (2 ed.), 40, the plaintiff and defendant performed certain work for the Duke of Marlborough under a joint contract with him, for which they jointly received and immediately divided certain sums of money paid on. account thereof. There being a sum in arrear, however, which the duke refused to pay, the defendant requested plaintiff to join him in maintaining an action to recover the same; but, the latter declining to comply therewith, the defendant brought an action against the duke, and recovered one-half of the sum due under the contract, whereupon the plaintiff instituted a suit to recover a moiety thereof on the ground that a partnership existed between the parties, and that the money which the defendant so- recovered was secured on their joint account; but it was held that the joint contract entered into' with the duke was an agreement to do a particular act, and not to form a partnership, and that the plaintiff was not entitled to recover. It is elementary, however, that, when the parties have so intended, a partnership may be formed for a single transaction: Kayser v. Maugham, 8 Colo. 232 (6 Pac. 803); Solomon v. Solomon, 2 Kelly, 18; Musier v. Trumpbour, 5 Wend. *274.

In the case at bar the evidence shows that Nash paid all the costs and expenses of the suits and actions in which the plaintiff and defendant appeared as his attorneys, and hence they never expected to share and did not participate in the losses incident to the trial of said causes. They shared the compensation paid by Nash for their joint service, but, as such participation in the joint earnings is not conclusive evidence of a partnership, it cannot be said from this fact alone that they sustained that relation to each other, without being driven to the deduction that the employment of more than one attorney to make preparation for or to try a cause ipso facto creates a special partnership, — a conclusion to which we cannot yield our consent. To hold otherwise is to conclude, in the absence of any evidence to the contrary, that a local attorney, employed only to- assist in impaneling a jury, because of his knowledge of and acquaintance with the jurors in attendance, entitled him to- an equal share of the attorney fee paid for the preparation required to be made and the care necessarily exercised in the trial of a cause; which would be carrying the doctrine of special partnership to the very verge of absurdity. It was incumbent upon the plaintiff to establish by a preponderance of the evidence the existence of the special partnership relied upon to give a court of equity jurisdiction of the cause; but in this respect we think he has failed. Our statute for the protection of private rights contains the following provision: “The enforcement or protection of a private right, or the prevention of or redress for an injury thereto; shall be obtained by a suit in equity in all cases where there is not a plain, adequate, and complete remedy at law” : Hill’s Ann. Laws, § 380. A court of equity and a court of law in this state, though presided over by the same judge, are essentially different forums, and the rule is well settled that a court of equity will not grant relief where there is an adequate remedy at law: Wells v. Wall, 1 Or. 295; Phipps v. Kelly, 12 Or. 213 (6 Pac. 707); Miller v. Tobin, 16 Or. 540 (16 Pac. 161); Love v. Morrill, 19 Or. 545 (24 Pac. 916); Ming Yue v. Coos Bay R. R. Co., 24 Or. 392 (33 Pac. 641); Stemmer v. Scottish Ins. Co., 33 Or. 65 (49 Pac. 588, 53 Pac. 498); Denny v. McCown, 34 Or. 47 (54 Pac. 952).

2. -Having concluded that no partnership-, either general or special, existed between the parties, the important question to be considered is whether the plaintiff has a plain, adequate, and complete remedy at law. In Dawson v. Gurley, 22 Ark. 381, it was held that an agreement entered into between several persons to divide, when received, a reward offered for the apprehension of a fugitive from justice, did not constitute a partnership, and that, if one of the parties to the agreement received the entire reward, he was liable to each of the others for his proportion in an action for money had and received. So, too, in Hurley v. Walton, 63 Ill. 260, it was held that the joining of two or more persons in a single adventure, in which the profits were to be equally divided, does not constitute them co-partners in such a sense as will 'oust a court of law of jurisdiction in respect thereto. If it be assumed that the money which the defendant received was paid on account of the services rendered by the parties, the plaintiff has a plain, adequate, and complete remedy at law in an action for money had and received to his use, and hence a court of equity never had jurisdiction of the cause. It follows from these considerations that the decree is reversed, and the suit dismissed.

Reversed.