McArthur v. Blaisdell

MELVIN, J.

An action was brought by Beauchamp H. Smith for an accounting and for certain specific property under an asserted copartnership. Judgment was given in favor of the defendant. Plaintiff moved for a new trial and this appeal is prosecuted from an order of the superior court denying said motion. After the appeal was taken the appellant died and William T. McArthur was duly appointed administrator of the estate of the deceased and was substituted as appellant.

The amended complaint which appears in the transcript bases the right to the relief demanded upon the alleged existence of a copartnership between defendant and the assignor of plaintiff’s intestate created about February 21, 1899, whereby the partners agreed to share equally in all profits and losses of said enterprise, and it is further averred that the contract of copartnership was amended by a certain agreement dated March 1, 1899, a copy of which is made a part of the complaint. It is in evidence, however, that the case was partly tried under plaintiff’s theory and pleading that the contract of March 1, 1899, itself created a copartnership, and the amendment to the complaint was made after the court

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had ruled that the agreement witnessed a joint enterprise not in the nature of a copartnership. The court insisted that proof of the existence of the copartnership must be made before the other evidence might be produced. Such proof was not forthcoming and nearly all of the rulings of which appellant complains were based upon the omission to show partnership. By the contract which as an exhibit is made a part of the complaint, S. Morgan Smith, assignor of plaintiff’s intestate and H. W. Blaisdell, the defendant, for the purpose of fixing and determining their mutual obligations, agree upon the proper manner of carrying out the provisions of a certain contract which they are about to make with the “King of Arizona Co.”, (a corporation), for the erection of a plant and pipe-line, and the method by which they shall apportion the eighty thousand shares of the capital stock of said corporation to be paid them for their work of construction and for materials to be used. First, there is an agreed valuation of the machinery, lumber, etc., contributed by each of the parties. Next, it is stipulated that each party shall have the right to contribute one half of the necessary expense of carrying on the work for the “King of Arizona Company,” but if either fails so to do the other reserves the right to furnish more than half the amount needed, receiving credit for the excess above his share so advanced, which shall bear interest at the rate of one per cent per month. The agreement next recites that when the eighty thousand shares of stock shall have been issued in payment for the work done and material furnished to the “King of Arizona Company” said shares shall be distributed to the parties in proportion to the amounts advanced by them respectively during the progress of the work. The rest of the contract relates to the salary of Blaisdell as manager, to his powers as superintendent, and to the method whereby he is to spend money for supplies.