McPherson v. Great Western Milling Co.

SHAW, J.

In this action for claim and delivery for certain personal property a judgment was entered in favor of plaintiff, from which defendant appeals.

It appears that defendant was the owner of a mercantile business under the name of the Orange County Supply Company, and on June 21, 1915, it entered into a written agreement with plaintiff, by the terms of which it was provided that plaintiff should, in addition to his services as manager of the enterprise, furnish the livestock, wagons, trucks, and equipment with feed and oil, the use of which was required in conducting the business, and as full compensation therefor, including his services, -he should receive one-half of the net proceeds derived from the business, subject 'to the termination of the contract at any time by defendant; it being further expressly provided that he was not a copartner and had no interest whatever in the assets of the business of which defendant was declared to be the sole proprietor. The contract also provided that

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plaintiff should execute a bond to defendant in the penal sum of two thousand five hundred dollars.

The subject of the action was five head of horses, two wagons, two sets of harness, and one set of wagon scales, all of which, except the last-mentioned chattel, were, as alleged in the complaint, made the subject of a bill of sale executed by plaintiff to defendant on July 1, 1915, in lieu of and instead of the bond, provision for which was made in the contract.

In accordance with the allegations of the complaint, the court found that the transfer of title to the property was in pledge to secure any indebtedness of plaintiff to defendant and arising out of the former’s conduct of the business; that on December 31, 1915, the relation existing between the parties under said contract was terminated; that plaintiff at all times was in possession of the property until about January 14, 1916, when defendant wrongfully took possession of the same; that at said time plaintiff was not indebted to defendant in any sum whatsoever. No attack is made upon these and other findings, which clearly support the judgment.

Conceding, if nothing was due from plaintiff to defendant, the latter’s act in taking the chattels was wrongful, appellant’s sole contention is that the business relations of the parties was in the nature of a copartnership in that it was a joint adventure, and hence the action should have been one for an accounting instead of a claim and delivery, citing D