Darrow v. St. George

8 Colo. 592 | Colo. | 1885

Elbert, J.

It is claimed that the referee erred in holding “community of losses” to be necessary to constitute a partnership, and but for this error of law he would have found the fact of partnership. We have assumed for the purposes of this investigation that the referee erred in this finding of law, and have examined the entire evidence.

The fifth finding of fact by the referee is as follows: “ One-half of all the net profits of sale, after return of the purchase price, expenses, and costs of sale, were to be divided between plaintiff and defendants. The plaintiff to make sales.”

These may be regarded as the admitted facts of the case. Outside of this there is nothing but contest and contradiction.

The claim is that these admitted facts show conclusively a partnership.

The position is untenable; for while the facts are entirely consistent with a partnership relation, they are equally consistent with the relation of principal and agent. If we accept Darrow’s statement of the specific terms of the agreement, it was a partnership. If we accept St. George’s statement, that the agreement was “to give him [Darrow] half of all the profits, after deducting expenses, he finding purchasers and selling lots, for such lots as he sold or found customers for,” then the relation was that of principal and agent. Sharing profits as compensation for services does not make a partnership.

Concerning these contested and controlling terms of the contract, the plaintiff and defendant confront and contradict each other. St. George is corroborated by Mrs. St. George, who testifies to the same terms of agency and compensation. Darrow is corroborated by Burke to the extent that he testifies in general terms that they were partners. Outside of these four, none of the witnesses sustain any relation to the subject-matter of the suit that required them to know the specific terms of the agreement, nor do they pretend to know them. Darrow’s witnesses testify to numerous occasions on which St. George spoke of Darrow as his partner, and St. George’s witnesses testify to numerous occasions on which Darrow spoke of St. George as the owner of the lots in question and of himself as agent. The manner of paying commissions does not throw much light on the subject. They would probably have been paid the same way under either theory of the case. The money came in generally in small amounts, and while settlements do not appear to have been made on each transaction at the time, payments on account of commissions were made with' a promptitude and regularity consistent with the running character of the business, and occasionally Darrow appears to have been indebted to the commission account. The book entries were for commissions, not profits; and Darrow signs many papers as agent; St. George signed no paper as partner. All expenses, including advertising, making and recording deeds, furnishing abstracts, and (as testified to by the defendant) taxes were charged to Darrow. The last item is an unusual item of expense for an agent to assume. Still the commissions were large, and the evidence shows that the lots in question sold rapidly. As a matter of fact, however, the item of taxes does not appear to have been specifically agreed upon. St. George charged them to Darrow as coming under the head of the general term expenses, which Darrow had assumed. And thus the issue on the question of partnership rests in conflict, with a preponderance of evidence, if there be any preponderance, in favor of the defendant.

It is not difficult to see that the contention touching the i’evocability or irrevocability of the agency must be be determined upon the same conflicting evidence. There is no fact in the case which, by operation of law, rescues it from this conflict; It is not a case where a valuable consideration has been advanced or paid for an agency, nor the case of an agency created for the security and protection of an agent, as where it is given as security for the payment of money, nor is it a case of agency “ coupled with an interest ” as claimed by counsel for the plaintiff.

The interest which the party to whom the power is given must have, in order to render the power irrevocable, must be an interest in the property on which the power is to be exercised, and not an interest in proceeds derived from a sale of the property. Whart. on Agency, sec. 95; Blackstone v. Buttermore, 53 Pa. St. 26; Hartley and Minor's Appeal, id. 212; Barr v. Schroeder, 32 Cal. 609; Hunt v. Rousmanier's Adm'r, 8 Wheat. 379.

In Hartley and Minor's Appeal, Thompson, J., says: “ To impart an irrevocable quality to a power of attorney in the absence of any express stipulation, and as a result of legal principle alone, there must co-exist with the power an interest in the thing or estate to be disposed of or managed under the power.”

The referee found that there was no partnership; that “ the contract was one of agency for compensation and nothing more,” and upon hearing, these findings of the referee-were approved and confirmed by the court below.- ’

We cannot say that this is manifestly against the weight of evidence. On the other hand, if it be conceded that such an agreement as is here sued upon does not come within the statute of frauds, we are of opinion that the case made by the complainant does not warrant a decree in his favor. The judgment of the court below is affirmed.

Affirmed.