Butler v. Union Trust Co.

[196]

VICTOR E. SHAW, J., pro tem.

The purpose of this action, 'brought by I. J. Grossman, for whom, as plaintiff, C. E. Butler, his guardian, has been substituted, was to dissolve an alleged partnership, secure- an accounting of profits accruing therefrom, and recover damages alleged to have been sustained by reason of the acts of G. A. Williams, now deceased, and for whom, as such defendant, the Union Trust Company, as executor" of his estate, has been substituted, which prevented plaintiff from carrying out the terms of the partnership agreement. Judgment was, rendered for plaintiff, and the court denying defendant’s motion for a new triq.1, he prosecutes this appeal from such order.

As found by the court (reference being had to the original parties to the action), plaintiff was a skilled designer and manufacturing furrier, but without means to purchase material or conduct such business. In February, 1913, he and the defendant entered into an agreement whereby the former was to contribute his labor and skill, and defendant should advance the necessary money for the purchase of material and to pay the expenses of conducting the business of manufacturing fur garments in a shop therefor provided by defendant, and advance to plaintiff for his personal expenses the sum of $15 per week; the goods so manufactured to be sold by defendant at his storeroom, where he conducted another line of business. The conduct of the business was to continue until January 1, 1914, at which time the net profits, less such sums as defendant had advanced to plaintiff for personal expenses, were to be equally divided between the parties.

Issue was joined upon the question as to the existence of the alleged partnership, and at the trial the court suggested that such issue be first determined before entering upon an inquiry as to the accounting prayed for. Thereupon, evidence was introduced touching the issue, at the close of which the court indicated that the transaction between the parties did not constitute a copartnership. Thereupon, defendant moved for a nonsuit upon the ground that the cause of action was based upon the theory that a partnership existed, out of which there arose the responsibility of one party to the other, and since, in the opinion of the court, the facts did not justify such theory, there was nothing on which to base an accounting. This motion was denied, the court holding that while no partnership was created, facts were established which en