■ Claiming to be a partner with P. T. Board'and K. E. Eeed in the work of grading twelve miles of railroad in Tyler county for the Tyler Traction Company, a corporation, E. E. Duffield brought this suit for an accounting and for his share of the profits of said work. The circuit court of Kanawha county gave him a decree for $4,288.51, payable out of a fund of $5,000 which had been deposited in the hands of L. Y. Koontz by Board and Eeed to be held subject to this controversy, and the defendant K. E. Eeed has appealed.
The contract for the work was made with the traction company by Board and Eeed, Board agreeing to furnish one-half the outfit and money necessary to perform the work, and Eeed the other half. Eeed associated plaintiff with himself, with Board’s consent. The contract with the traction company required a bond of the contractors in the penalty of $15,000 to insure the performance of the work. This bond was signed by P. T. Board, L. Y. Koontz and Forsythe Stephenson. The contract further provided that, as the work progressed, 10% of the amount due the contractors was to be retained until the work was completed. Eeed contends that
Board, Duffield and Reed were all practical railroad construction men, and while no two of them seem to have been general partners in all their work, Reed and Duffield had been associated as partners at other times on other jobs, one on Loup Creek and later on the Buffalo Creek job which was begun about a year before the Tyler county work was undertaken. The Loup Creek work was hot completed when the Buffalo Creek job was undertaken, and Duffield says he and Reed sublet the Buffalo Creek work to himself and Mr. Widen at 10% less than he and Reed were to get for the work, with the understanding that Reed was to remain on the Loup Creek
I. C. Trout, the bookkeeper for the firm of Board and Reed for about a month at the beginning of the Tyler county work and before Hill became the bookkeeper, testified that, when the grading tools were shipped to the work, Reed gave him a list of those shipped by Duffield, and told him to take care of the list, “as he and Mr. Duffield were partners in the work,” Scott Nottingham, the bookkeeper for Widen and' Duffield on the Buffalo Creek work, was called up to Sisters-ville, he says, to help make a settlement between Duffield and Reed as to the work they had done before undertaking the Tyler county work, and that Reed told him he wanted to know exactly how they stood so that Duffield could put in an amount equal to what he had put in the work, and said Duf-field had the same interest in the Tyler county work he (Reed) had, that Duffield was present when this conversation was had; and that the Loup Creek, Buffalo Creek, South Charleston and St. Albans jobs were included'in this settlement. F. D. Clemens testified that Reed asked him to come to Tyler county with a view of bidding on some masonry work to be done, that he remarked that he didn’t think Mr. Board liked him very well, and would not be disposed to give him any work, and Reed replied “that he and Mr. Duffield had as much interest as Mr. Board had; that Board had one-half interest and he and Duffield a quarter, and said that Mr. Duffield’s name was not in the contract, but that he was a partner.” Reed does not dispute the testimony of witnesses Trout and Nottingham, and only denies a part of the conversation between himself and Clemens, as related by the
The evidence decidedly preponderates in favor of Duffield’s contention, that he was jointly interested in the profits of the Tyler county work with Board and Reed and was entitled to one-fourth of the profits. There is no controversy as to Board’s interest, both Reed and Duffield admit that he, was interested to the extent of one-half.
Several months before the Tyler county work was completed Reed went to Jane, Virginia, to take charge of a job* undertaken .by him and Board, in whieh Duffield had no interest, and, after the completion of the Tyler county work, Duffield and Hill, the bookkeeper, went to Jane to settle the accounts of Reed and Duffield. Board, Reed and Duffield were all present on that occasion. Hill testified that he kept separate accounts of each member of the firm, that balances were struck between Reed and Duffield, and the former owed the latter a balance of $5,000; that the items embraced in the account were the cash turned in to the firm of Board and Reed by K. E. Reed and by E. E. Duffield, the outfit turned in by Duffield and Reed, the profits on the work, and the division of the outfit between Duffield and Reed, that was taken from the Tyler county work to Board and Reed’s work at Jane, Virginia. Hill further says he had kept their accounts, believing Duffield and Reed werfe equal partners on the jbb, and that, after stating the account showing a balance due Duffield, Reed admitted it was correct so far as he could see; and not until the next day after Duffield had left Jane, did Reed inform the witness that he (Reed), as between himself and Duffield, was to have the entire 10fo withheld by the traction company;
Although the Tyler county contract was taken in the name of Board and Reed, it is proven that Duffield was taken in as an equal partner in the contract with Reed, these two together taking a half interest and Board the other half. 'Their intention to create such a partnership for the performance of the Tyler county work, and to share in the profitsTs ■clearly dedueible from the evidence concerning what was •«done and said by them in relation to the work. A formal writing is not necessary to create a partnership between parities; their voluntary consent was all that was necessary, and ithat may be either expressed, or implied from their conduct •and dealings. Wm. Dering & Co. v. Coberly,
Reed does not deny that Duffield was a partner; that he put up one-fourth the outfit and advanced one-fourth the money to carry on the work. But he seeks to qualify and limit his interest in the profits, by claiming a special arrangement between them, whereby he was not to share in a ■certain per centum thereof. The partnership being admitted, the presumption is that the partnership agreement was in accordance with the general rules of law, whereby each partner would share in the profits and losses according to the proportion of means, skill and labor furnished by him to carry on the joint enterprise. 30 Cyc. 475. This legal presumption oasts upon Reed the burden of proving the alleged agreement between himself and Duffield, and this burden he has utterly failed to discharge. On the contrary the evidence preponderates decisively in favor of Duffield. The percentage withheld by the Tyler Traction Company was something over $17,000 and the profits on the work were less than $14,000, wherefore, if Reed’s contention is true, Duffield has lost several hundred dollars on the job and his loss would go to swell Reed’s profits.
Reed may have made the contract with Stephenson, they iboth swear to it, but he thereby bound only himself. Board, Duffield and the bookkeeper, Hill, all testify that they never heard of the alleged contract between Stephenson and Reed until after the settlement made at Jane, Virginia, and after Duffield had left there. Board and Duffield both say that,
The foregoing conclusions lead to the affirmance of the decree, and it will be so ordered. Affirmed.