De Groot v. Peters

BRITT, C. Plaintiff alleged in his complaint in this action that himself and defendant are partners under the name of the Buffalo Woolen Company, constituted such by an agreement in [407]writing, engaged, it seems, in the business of merchant tailors; and upon information and belief he charged that defendant committed divers specified acts of misconduct in the course of said business; wherefore he prayed a dissolution and an. accounting. Defendant answered, denying any partnership with plaintiff, and exhibiting a contract in writing between them, by the terms whereof (as the court below seems to have interpreted it, and we think correctl}r) the plaintiff was employed by defendant as a salesman upon a salary in said business, with a right to one-fourth of the net profits, if any, but was not made a partner with defendant. At the time of filing such answer defendant filed also a sworn cross^coniplaint, in which he "■ averred, among other things, that the written contract exhibited in his answer is the same agreement mentioned in plaintiff’s complaint; that plaintiff was in his employ as a salesman, and that after the commencement of this action plaintiff neglected his duties in that capacity and harassed defendant in the conduct of his business, and that defendant discharged him; that nevertheless plaintiff holds himself out to the- public as a partner in said business and intrudes into defendant’s office and place of business and there remains, interfering with defendant’s affairs; that he has collected money from the patrons of defendant, due to the latter, and converted it to his own use; that he claims the right to do these things as a partneT in the business, and threatens and intends to continue such acts contrary-to the will of defendant; and that plaintiff is insolvent. f Defendant prayed an injunction to restrain the continuance of said conduct of plaintiff, and the court granted the writ. Afterward plaintiff answered the cross-complaint, denying some of its averments, and reasserting his status as a partner; but he did not deny that his alleged contract of partnership is contained in the instrument described in the pleadings' of defendant, or that he attempts to participate in the management of ihe business, or that he is insolvent. He moved for a dissolution of the injunction; the motion was heard on the pleadings and was denied; hence this appeal.

The main insistence of plaintiff is that, conceding himself to have no interest as a partner, yet the case made shows that at most he is a mere trespasser in defendant’s store, and that [408]