Zullo v. Treat

Pennsylvania Court of Common Pleas

Zullo v. Treat

13 Conn. Supp. 275, 1945 Conn. Super. LEXIS 38

CourtPennsylvania Court of Common Pleas

DecidedMarch 26, 1945

DocketFile No. 35679

StatusPublished

This text of 13 Conn. Supp. 275 (Zullo v. Treat) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zullo v. Treat, 13 Conn. Supp. 275, 1945 Conn. Super. LEXIS 38 (Pa. Super. Ct. 1945).

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Opinion

FITZGERALD, J.

Plaintiff’s complaint as amended alleges that plaintiff and defendant entered into an agreement (ap\parently oral) under which plaintiff was to do repair work for defendant and from the “gross proceeds” received by defendant he was to pay over to plaintiff “one'half” thereof; that plaintiff acting upon that agreement performed specified “services” in enumerated amounts and defendant is indebted to him in a stated amount. Additional allegations sounding in a conversion of tools alleged to be owned by plaintiff and damage to a hydraulic jack also alleged to be the property of plaintiff follow.

[276]*276Defendant moves to strike the complaint as amended on the ground that plaintiffs remedy, if any, is for a partnership accounting and not one for damages.

If, as claimed by defendant, the relationship between plaintiff and defendant was that of copartners, plaintiff’s remedy in the main is an action for accounting. See 47 C.J., Partnership, §250, p. 802, and the following Connecticut cases cited in footnote 16: Beach vs. Hotchkiss, 2 Conn. 425, 428; Moore vs. Denslow, 14 id. 235, 237.

The' complaint as drawn could have been more perfectly assembled. The allegations relating to breach of agreement, conversion by defendant of certain tools belonging to plaintiff and defendant’s damage to the hydraulic jack alleged to be property of plaintiff should not have been thrown into a single count. But that apart, the essential question in the light of the interposed motion is whether plaintiff purports to allege initially the relationship of copartners or simply a breach by defendant of a contract of employment with compensation thereunder to be accorded plaintiff on a stipulated basis.

An examination of the complaint and amendment thereto satisfies the court that plaintiff is not purporting to allege a partnership status between him and defendant. Upon “the question of partnership it is sufficiently accurate to say that there is a partnership between two or more persons whenever such a relation exists between them that each is as to all the others, in respect to some business, both principal and agent.” Morgan vs. Farrel, 58 Conn. 413, 422, quoted with approval in Hotchkiss vs. DeVita, 103 id. 436, 445. Tested by this standard it is apparent that the alleged relationship between plaintiff and defendant was that of contractor and contractee on a stipulated basis de compensation.

This conclusion disposes of defendant’s motion. Motion denied.

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FITZGERALD, J.

Plaintiff’s complaint as amended alleges that plaintiff and defendant entered into an agreement (ap\parently oral) under which plaintiff was to do repair work for defendant and from the “gross proceeds” received by defendant he was to pay over to plaintiff “one'half” thereof; that plaintiff acting upon that agreement performed specified “services” in enumerated amounts and defendant is indebted to him in a stated amount. Additional allegations sounding in a conversion of tools alleged to be owned by plaintiff and damage to a hydraulic jack also alleged to be the property of plaintiff follow.

[276]*276Defendant moves to strike the complaint as amended on the ground that plaintiffs remedy, if any, is for a partnership accounting and not one for damages.

If, as claimed by defendant, the relationship between plaintiff and defendant was that of copartners, plaintiff’s remedy in the main is an action for accounting. See 47 C.J., Partnership, §250, p. 802, and the following Connecticut cases cited in footnote 16: Beach vs. Hotchkiss, 2 Conn. 425, 428; Moore vs. Denslow, 14 id. 235, 237.

The' complaint as drawn could have been more perfectly assembled. The allegations relating to breach of agreement, conversion by defendant of certain tools belonging to plaintiff and defendant’s damage to the hydraulic jack alleged to be property of plaintiff should not have been thrown into a single count. But that apart, the essential question in the light of the interposed motion is whether plaintiff purports to allege initially the relationship of copartners or simply a breach by defendant of a contract of employment with compensation thereunder to be accorded plaintiff on a stipulated basis.

An examination of the complaint and amendment thereto satisfies the court that plaintiff is not purporting to allege a partnership status between him and defendant. Upon “the question of partnership it is sufficiently accurate to say that there is a partnership between two or more persons whenever such a relation exists between them that each is as to all the others, in respect to some business, both principal and agent.” Morgan vs. Farrel, 58 Conn. 413, 422, quoted with approval in Hotchkiss vs. DeVita, 103 id. 436, 445. Tested by this standard it is apparent that the alleged relationship between plaintiff and defendant was that of contractor and contractee on a stipulated basis de compensation.

This conclusion disposes of defendant’s motion. Motion denied.

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13 Conn. Supp. 275, 1945 Conn. Super. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zullo-v-treat-pactcompl-1945.

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