Triplett v. Triplett

SPENCE, J.

Plaintiff brought this action against J. B. Triplett, since deceased, seeking an accounting. After the death of J. B. Triplett, his executors were substituted as defendants. From a judgment in favor of said defendants, plaintiff appeals.

The complaint was drawn upon the theory that plaintiff and said J. B. Triplett had formed a partnership on September 10, 1925, for the purpose of the manufacture and sale of certain patented tools and that said partnership had continued down to the time of the filing of the complaint on August 27, 192'6. It was alleged on information and belief that said J. B. Triplett had started 'the manufacture and sale of said tools. The answer alleged that the partnership had been dissolved on October 12, 1925, and denied that any business had been carried on by said partnership at any time. It was further alleged by way of defense that said J. B. Triplett was induced to enter into the partnership agreement by the promise of plaintiff to contribute $30,000 for the purpose of erecting a factory and that there was a failure of consideration as plaintiff had failed to supply said sum or build said factory.

Upon the trial it appeared that prior to September 10, 1925, said J. B. Triplett had applied for certain patents on tools designed for use in the oil industry. About one month after the parties had entered into their partnership agreement, said J. B. Triplett, on October 12, 1925, notified plaintiff by letter as follows: “This is to notify you that the agreement of copartnership entered into by you and J. B. Triplett on Sept. 12, 1925, is hereby terminated.” During the period between the above-mentioned dates no tools had been manufactured or sold. The controversy in the trial court centered largely around the question of whether certain tools known as under-reamers, which were manufactured and sold by said J. B. Triplett subsequent to October 12, 1925, were included in the tools contemplated by the partnership agreement. Plaintiff contended that they

[468]

were but the court found against the plaintiff’s contention on this issue. It further found that the partnership terminated on October 12, 1925, had existed in name only, and had transacted no business at any time. The court thereupon concluded that there was nothing on which an accounting ' could be had and rendered judgment for defendants.