Kirkpatrick v. Smith

VALLÉE, J.

Appeal by plaintiff from a judgment awarding him $2,734.27, with interest, in an action against his coadventurer seeking monies due under a contract. The joint venture was unsuccessful, and the amount awarded plaintiff represents his share of the distributable proceeds after deduction of the loss sustained.

On November 12, 1947, plaintiff and defendant Marshall Adams Smith entered into a written contract to construct a house upon land owned by defendant, which, upon completion, was to be sold and the profits shared equally between them. Plaintiff, a contractor, was to supervise and direct its construction, and defendant was to have charge of its sale. The agreed value of the land was $8,500. A loan was secured

[410]

upon the land, and the proceeds used in constructing the house. It was agreed that if the proceeds were insufficient to complete the house, each of the parties would pay half of the amount necessary therefor. During the course of construction, plaintiff advanced $7,204.61, and defendant advanced $7,983.58 toward construction costs.

Paragraph 6 of the contract provides: “Neither party hereto shall he entitled to any wages or remuneration for services rendered hereunder, his sole compensation being his share in the expected profits, and in the event of loss the parties hereto shall each pay, and each hereby agrees to pay, one-half thereof. ...”

Paragraph 8 provides that the proceeds derived from the sale of the property be used and divided as follows:

“First: to pay the costs and expenses of sale;

‘1 Second: to pay the balance then due on said loan if the same has not been assumed by the buyer;

“Third: to repay to each party all advances made in connection with the erection and construction of said residence, on account of loan payments, interest thereon, taxes and other items necessary and paid by the parties and not repaid from the proceeds of said loan;

“Fourth: to pay to first party [defendant] the sum of $8,500.00, as and for the land above mentioned; and

“Fifth: the balance shall be divided equally between the parties;