169 A. 906 | Vt. | 1934
Brown and Pelkey entered into a verbal agreement whereby Pelkey was to operate Brown's farm "to halves." The only testimony concerning this agreement was given by Brown, on examination by plaintiff's counsel, as follows:
"Q. And did you, during the years 1925-1926 have a farm in Franklin which was carried on by a man named Henry Pelkey? A. Yes, sir.
Q. What arrangement did you have with Mr. Pelkey with respect to carrying on this farm? A. We took it to halves.
Q. When you say `took it to halves,' do you mean that you received half the milk checks? A. Yes, sir.
Q. Half of all the produce raised on the farm? A. Yes, sir.
Q. And how about the expenses? A. He was to pay half, of course.
Q. That is, he was to participate equally in losses and profits? A. Yes, sir."
During the continuance of this arrangement, Pelkey purchased from the plaintiffs, on credit, certain quantities of grain for use on the farm. The purchases were charged to Brown and Pelkey. Brown paid half of the account, and this action was brought against both parties to recover the balance. The verdict and judgment were for the plaintiffs, and the case is here on Brown's exceptions.
The court instructed the jury that the agreement, as given in the testimony above quoted, constituted a partnership between the defendants. This instruction is challenged by an exception.
An agreement to share in the profits and losses of an adventure is an essential element of a partnership, and, ordinarily, is sufficient to constitute the parties to such agreement partners.Brigham v. Dana,
But sharing in the profits and loss of the business is not always decisive of the existence of a partnership, as between the parties, because it may be merely an arrangement with a view to compensation for services rendered by one to the other, the amount of which is to be dependent upon the success of the business. Morgan v. Stearns,
There is a clear distinction between agreements whereby the parties have a specific interest in the profits qua profits, and agreements which give to the person sought to be charged as partner, not a specific interest in the business or profits, but a stipulated proportion of the proceeds as compensation for his labor and services. The former constitute a partnership; the latter do not. Clark v. Smith,
It is said in Walworth v. Jenness,
The evidence did not necessarily import such a contract as would make Brown and Pelkey partners. The witness testified that Pelkey carried on the farm "to the halves," under an arrangement that each party should have half of the milk checks and produce, and pay half of the expenses. The last question, as framed, might reasonably be construed as calling *69
for his construction of the agreement and not for the terms of it. The phrase "that is," by which it was prefaced, showed that it had reference to the answers to the preceding questions, and the reply of the witness might reasonably be taken as a statement of his understanding of the purport of his previous testimony, and not as a recital of a specific agreement that all profits and loses should be shared. If the question and answer stood alone, the charge might have been justified, but the testimony is not to be considered piecemeal, and apart from the context, but as a whole, together with reasonable inferences to be drawn therefrom.People's Nat. Bank v. Brunelle,
It is true that at the close of the charge the court asked the jury to find whether there was a partnership. But since it had previously given what amounted to a binding instruction that a partnership existed, the error was not cured. Where there are two inconsistent instructions it will be taken that the jury have felt that they are at liberty to follow either of them. Ide v. B. M.R.R. Co.,
There is nothing in the record to show that the two defendants held themselves out as partners in their dealings with the plaintiffs, so as to estop themselves from proving the true nature of their contract. *70
The defendant presented a series of requests to charge and excepted "to the failure of the court to charge as requested in each of his several requests." This exception is too general to require attention, as we have many times decided. It is necessary to cite only a few of the cases. Temple v. Duffy,
Judgment reversed, and cause remanded.