38 Ind. App. 396 | Ind. Ct. App. | 1906
The appellee, who was the plaintiff, and the appellant, who was the defendant, in 1891, contracted with one Parkinson to purchase from him certain real estate, being two adjoining quarter sections of land in Jasper county-; and Parkinson, in February, 1895, by his general warranty deed, conveyed the land to the appellee and the appellant as tenants in common, the purchase price being $11,200. At and before this conveyance the grantees páid a part of the price, $3,500, each paying an equal portion thereof, and they became jointly indebted to Parkin
This was a suit for an accounting and for the recovery of any balance found due the appellee, there being a counterclaim filed by the appellant. The court found there was due to the appellee from the appellant $678, and that the latter should account to the former, for that sum, and that such sum due the appellee from the appellant was wholly unpaid. As part of the finding, it was stated: “The court does not take into account any indebtedness that may be owing by the partnership, and does not decide any question concerning the same.”
The indebtedness referred to in the finding was evidenced by two certain promissory notes, one dated December 23, 1899, for $500, signed by the appellant and by the appellee, and one dated August 20, 1900, for $1,000, signed by the appellant and his wife and by the appellee. These notes were payable to the appellant’s father, and were given, the first for $500 borrowed by the appellant from his father, at its date, the second for $500 so borrowed at its date, and also in lieu of a note of the appellant alone theretofore given for $500 previously borrowed by him of his father. The loans were made to the appellant individually. The notes were not signed in a firm name. There was no firm name, and there does not appear to have been any authority in either party to sign his own name as a firm name, or for or on behalf of both of the parties, or any intention to do so. Each signed as an individual, as and for himself alone. Each note was signed by the appellee some time after its execution, and, so far as appears in this case, without consideration. The money for which the notes were given did not become the property of the appellee, and he does not appear to have had any control over its disposition; and he testified that he did not know how it was used. It was owned and controlled by the appellant alone, who used it for various purposes, paying some of it upon the principal mortgage debt* some for interest thereon, some for taxes, some for cattle purchased by him alone, and some for wages of men who worked on the farm. Some payments were made by the appellant to his
The court could properly regard the unpaid notes as having been given for money borrowed by the appellant alone for his own use, and therefore might properly hold, as it in effect did hold, that the outstanding notes ought not to be considered as entering into the account between the parties adjusted in this suit. The parties were not partners inter se, and they did not hold themselves out as such to the payee of the notes, which were not given nor received as the notes of a partnership. See Hubbell v. Woolf (1860), 15 Ind. 204; Ditts v. Lonsdale (1875), 49 Ind. 521.
To be a partner, one must have an interest with another in the profits of a business, as profits. There must be a voluntary contract to carry on a business with intention of the parties to share the profits as common owners thereof. A person who receives a share of the net profits of a business as compensation for services or in lieu of rent for the use of property, real or personal, is not thereby made a partner. See 22 Am. and Eng. Ency. Law (2d ed.), 36; Macy v. Combs (1861), 15 Ind. 469; Emmons v. Newman
There were no special findings, properly so called, and the finding in which the remark above quoted occurs is to be considered as a general finding. Whether the remark of the court may properly be regarded as in itself, presenting any question for decision we do not determine, but we have not been disposed to avoid the question discussed by counsel, and we conclude that the disposition of the cause as indicated by the remark so inserted in the finding was not materially erroneous, though the court below incorrectly adopted the term “partnership,” loosely used in the course of the proceedings.
Judgment affirmed.