Quinn v. Quinn

Hayne, C. Suit for an accounting. The general facts are as follows: On March 3, 1885, the plaintiff, Thomas Quinn, who was then the owner of the lease of a certain quarry, and the owner of certain personal property used in connection therewith, and of some stone which had been quarried and was on the ground, assigned the lease to his brother, Patrick Quinn. On the same day, and as part of the same transaction, the two brothers signed an agreement which referred to the assignment of the lease, and recited that “the true consideration of said assignment are the terms, covenants, and agreements herein contained, and the due fulfillment of the same,” and provided for the working of the quarry. The material provisions-of this agreement were as follows: The expenses of working the quarry, including those previously incurred by Thomas, were to be paid by Patrick “out of the proceeds of the business,” and the net profits were to be equally divided ■ between [15]them. The business was to be conducted in the name of Patrick, and he was to have “complete management and control” thereof. But Thomas was to “devote his time, labor, and skill” thereto, and was to incur a penalty of $3.50 for every day that he failed to do so. The business was carried on up to December 12, 1885, when work on the quarry was stopped. On February 3,1886, Patrick, without the knowledge or consent of Thomas, transferred the lease and all the personal property to one Healy, who thereupon took possession, and soon afterward ordered Thomas off the premises. The main question is as to the-validity of this transfer. The court below gave judgment for the defendant Healy, and the plaintiff appe'als.

We think that a partnership existed between Thomas and Patrick. The written agreement provided for the working oí the quarry together, and that each was to share equally in the profits of the business. There was, therefore, “an association of two or more persons, for the purpose of carrying on business together and dividing its profits between them.” And this, in general, constitutes a partnership. (Civ. Code, sec. 2395.) There was not only a community in the right to profits, but also a community in the liability for losses. The agreement provided that the expenses should be paid by the manager “ out of the proceeds of the business,” but there was no express provision as to- liability in case of loss. The contract was silent on that point. Hence an equal liability for losses was implied. (Civ. Code, sec. 2404.) And the profits were to be divided as profits, and not as rent or compensation for services, such as is allowed by a certain class of cases. There was, therefore, a partnership. Moreover, this is alleged by the plaintiff in his complaint, and -his counsel insists upon it in his brief. Such partnership was a strict and not a mere mining partnership. For even if it be assumed that there could be a mining' partnership in such a thing as a quarry