10 N.W.2d 477 | Neb. | 1943
This action was commenced in the district court for Scotts Bluff county by Theodore Baum, plaintiff and appellee herein, against Harold G. McBride, defendant and appellant herein, to establish a partnership between the appellee and appellant entered into for the purpose of dealing in potatoes, for dissolution thereof, and for a determination of the rights of the partners therein. Upon the issues raised by the pleadings the court limited the trial to the matter of whether or not there was a partnership. From a judgment that the appellee and appellant doing business under the name of McBride Potato Company constituted a partnership, ordering a dissolution and liquidation thereof
The question presented by this appeal is whether or not a partnership existed. As stated in Carlson v. Peterson, 130 Neb. 806, 266 N. W. 608: “The existence of a partnership is a question of fact under the evidence,” and further: “More convincing evidence is required to prove existence of partnership where alleged partners are the only litigants than where the controversy is between a third party and the partners.” The burden of establishing the partnership is on the appellee.
A partnership has been defined in Waggoner v. First Nat. Bank of Creighton, 43 Neb. 84, 61 N. W. 112: “Copartnership is a contract of two or more competent persons to place their money, effects, labor, skill, or some or all of them, in lawful commerce or business, and to divide the profit or bear the loss in certain proportions.”
Appellee testified that sometime in the first week of July, 1939, the appellant suggested that they put everything they had together and deal in potatoes and operate as fifty-fifty partners, to which the appellee consented; whereas, the appellant contends that, after he had talked with the appellee in the spring and then in the forepart of July, 1939, when he suggested he would make him a better deal, in the latter part of September of the same year he told the appellee that if he would stay with him five years, use his car, would not draw over $150 a month and would get his father to help in case they needed some credit he would give the appellee half of the profits, to which the appellee consented. In order to determine which of these parties is correct as to the agreement they made it will be necessary to consider all of the facts and circumstances disclosed by the evidence, for as stated in Carlson v. Peterson, supra: “The existence of a partnership depends upon the agreement of the parties, and their intention is to be ascertained from all the evidence and circumstances of a case.”
The evidence discloses that in the summer of 1939 a potato washer and also potatoes were purchased out of the funds of McBride and Baum for the McBride Potato Company and subsequently all of the assets and liabilities of the partnership of McBride and Baum were, sometime in September of 1939, included with the assets of the McBride Potato Company as shown by the financial statement dated September 11, 1939, prepared by the appellant for the purpose of securing credit at the bank. It was agreed that in view of the established business of the appellant under the name of McBride Potato Company they would continue to use it in their business. Commencing with September, 1939, appellee started writing checks on the account of McBride Potato Company both for the purpose of buying potatoes and for his own expenses. About the latter part of October or the forepart of November, 1939, a carload of potato bags was received and appellee’s father was then solicited to assist in financing the purchase thereof and he testifies that then and on other occasions thereafter when his credit was necessary to finance the business appellant
To continue with a further detailed statement of the facts, as shown by the voluminous testimony and exhibits, would only necessitate unnecessarily extending this opinion. While the appellant testifies that he did not enter into an agreement with the appellee to conduct the potato business of the company on a partnership basis but rather on the basis of sharing the profit and denies that it was conducted as a partnership and testified as to the contents of letters exchanged between the parties in December of 1939, which contents appellee denies, to show that the parties did not consider themselves as partners in the business and adduced evidence of transactions of the company in which it was not designated as a partnership, however, from the record as a whole it shows by clear, satisfactory and convincing evidence that the parties entered into an agreement to put everything they had together and deal in potatoes and
Under the facts as herein determined those cases cited by appellant where a sharing of profits as compensation for the use of money or property or service does not constitute a partnership are not applicable.
The judgment of the lower court is affirmed.
Affirmed.