Chapman v. Hughes

Van Fleet, J. This is an action for an accounting with reference to certain real estate transactions in which plaintiffs claim to be interested with defendant .as partners, and in which it is alleged large profits were made and appropriated by defendant, who refused to .account. Findings were in favor of defendant upon all the issues, upon which judgment was entered in his favor, and plaintiffs appeal from the judgment upon a ■bill of exceptions.

The pleadings and findings are voluminous, but from the view we take of the questions involved no extended statement of the facts is required.

1. On the question whether the five thousand one hundred and twenty acre tract was bought by Hughes ■for himself, or for joint account of himself and the plaintiffs as copartners and held in trust for the partnership, the court finds “That the defendant and plaintiffs were not at any time the owners or seised in fee of any of the pieces, parcels, or tracts of land described in paragraph 3 of the amended complaint, or .any portion thereof, as copartners. That no portion of [304]any of said land stood at any time in the name of Thomas E. Hughes for the use and benefit of the plaintiffs, and no portion of said property'at any time stood in the name of the defendant, Thomas E. Hughes, in trust or otherwise, for the parties to this action as co-partners, or in any other way. The fact being that Thomas E. Hughes was the owner, and entitled to the sole and absolute possession of the whole thereof in fee simple.” A careful examination satisfies us that the evidence upon this question, while possibly preponderating to some extent in favor of plaintiffs, is substantially conflicting, and the finding cannot therefore be disturbed. This finding being sustained, the entire claim of plaintiffs based upon the contention that there existed between the parties a partnership in this particular tract, independently of the syndicate agreement, must fall to the ground.

2. The syndicate agreement did, in our judgment, constitute a partnership within the definition of section 2395 of the Civil Code. It created an association of three persons for the purpose of carrying on together the business of selling the lands, and dividing the profits of that business between them. It contemplated united action in advertising and otherwise in promoting sales, and a joint expense to be incurred thereby, and further expressly provided for the payment to the syndicate of commissions on sales of other lands than those put into the syndicate. This was sufficient to constitute the relation of partnership. Whether the parties knew that they were partners or not, they certainly intended and contracted to do all that in law is necessary to create a partnership. The relation of partnership may be established, although the parties may not expressly intend to create such relationship. (Parsons on Partnership, 86; Duryea v. Whitcomb, 31 Vt. 395.) The respective parcels of land embraced in the syndicate were contributed by the respective partners, and thereby became subject to the partnership agreement. (Civ.