Clark v. Smith
52 Vt. 529
| Vt. | 1880

The opinion of the court was delivered by

Veazey, J.

The first question is as to the ownership of the boards and chair stock attached, as between Damon E. Cheney and Fairbanks. Cheney, owning the timber lot and mill, entered into a contract with Fairbanks by which the latter was to cut and draw in the logs, and saw and manufacture them “ into chair-backs or other kinds of manufactured wares that the said Cheney may deem the most profitable”, furnishing his own oil, &c., after the mill was put in running order by Cheney. Cheney was to market the manufactured goods and make the collections. They were to divide the freights from the mill to the market and the expense of cutting and delivering the logs at the mill. After deductions were made for these purposes, then the balance of the proceeds was to be equally divided. This is what the contract *532was in effect so far as it pertained to the logs cut on Cheney’s lot. The other parts of the contract are not involved in this case, only so far as they are to be considered in giving construction to this part. The instrument was not a lease in form or substance so far as it pertained to the logs. It was an agreement by which Fairbanks was to do certain work for Cheney, for an indefinite time, and as the work was to be in the production of certain wares for market, the parties agreed that Fairbanks’s compensation should be a portion of the proceeds as the goods were sold. The lumber and the mill were Cheney’s ; he was to direct in the manufacture, market the products, make the collections and pay half the proceeds to Fairbanks. The duty of the latter was to manufacture the lumber under Cheney’s direction. He reserved no control of the products, no voice in the sale. The agreement as to his compensation was not that he should have a share of the profits, but a share of the proceeds of the sale without calling the raw materials anything. Fairbanks was to have a given sum for his labor, to be measured by the amount of proceeds. There is a clear distinction to be found in the cases involving the question, between agreements by which the parties have a specific interest in the profits themselves as profits, which makes a partnership, and such as give to the party sought to be charged as a partner, not a specific interest in the business or profits, as such, but a stipulated proportion of the proceeds as a compensation for his labor and services. Ex parte Hamper, 17 Ves. 404; Loomis v. Marshall, 12 Conn. 69 ; Turner v. Bissell, 14 Pick. 192 ; Dry v. Buswell, 1 Camp. 329 ; Muzzy v. Whitney, 10 Johns. 226 ; Wilkinson v. Frazier, 4 Esp. N. P. 182 ; Harding v. Foxcroft, 6 Greenl. 76 ; Rice v. Austin, 17 Mass. 197 ; Baxter v. Rodman, 3 Pick. 435 ; Cutler v. Winsor, 6 Pick. 335. This case comes under the latter category.

But the defendant claims that the conversion was by the attachment when Damon E. Cheney owned the property, and that no one else could maintain this action against the defendant, even though Fairbanks had no attachable interest in it. As we understand the agreed statement of facts, the property was not removed when attached and sold by the sheriff, the attachment having *533been made by copy left at the town clerk’s office, but it remained there on Cheney’s premises undisturbed until it was sold by the defendant in December. In the September previous, said Cheney sold it to Maynard A. Cheney. In October the latter sold it to the plaintiffs. Therefore the plaintiffs had become the owners before it was interfered with by anybody, except by an attachment and sale without right. Under such attachment and sale, and as the property still remained undisturbed, there was no occasion for the real owners to move in the matter; biit when the defendant took the property and sold it, this was a conversion as against the actual owners, who were the plaintiffs, and the right of action then accrued to them. Irish v. Cloyes, 8 Vt. 30.

The result is that the judgment of the County Court is reversed, and judgment for the plaintiffs for the value of the property, including interest as found by the County Court.