15 Neb. 549 | Neb. | 1884
I think this case might be designated a suit in equity for an accounting and damages, or it might be called an action o account at common law In either view the action is brought directly on the written contract set out and described in the petition, and for its breach. I do not think that the contract can be held to have created a partnership between the parties, even as between themselves. The object in construing a contract is to ascertain the intent of the parties when they executed it. The law will, when necessary, give a name to 'the relationship established between contracting parties, according to the intent of the parties, as expressed in the words of the contract, and, in cases of doubtful meaning, the relations of the several parties towards each other and towards the subject matter of the contract, as well as their contemporaneous acts and dealings, will all be considered.
Now let us look at the language of this contract. The words partner or partnership are neither used in it through
We have seen above what the defendants agreed to do. Now then, what did they do, or fail to do ? The petition informs us that “about the 8th day of August, 1879, the said defendants did stock said tradership store, to the amount and value of which stock furnished these plaintiffs are unable to state.” From this point forward, the petition charges a series of violations of the contract, and alleges nothing thereafter done in pursuance of its terms;
If the plaintiffs had placed money or goods in the hands of Kendall & Smith, or of Charles D. Smith, I agree that he could not hold on to it and at the SSme time claim in a court of equity that he used it for his own use and benefit and not for theirs. They had, in a manner, placed their license in his hands, but in law that gave him no right; and whatever advantage he may in fact have derived from such license cannot be considered, or an account taken of, in a court either of law or equity. The defendants then not having received either money or other valuable thing from the plaintiffs of which the law will take account, they are accountable to them, if at all, solely by virtue of the contract.
Many years ago the government of the United States adopted the policy of prohibiting trade and intercourse
The case of Brooks v. Martin, 2 Wall., 70, cited by counsel on either side, did not depend, nor was it founded mainly on contract. The equity which carried that case depended on the fact that Martin had placed a large sum of money into the hands of a partnership consisting of
Ch. J. Marshall, in the case of Armstrong v. Toler, 11 Wheat, 268, stated the law with great clearness and perspicuity in the following language: “Questions upon illegal contracts have arisen very often, both in England and in this country, and no principle is better settled than that no action can be maintained on a contract, the consideration of which is either wicked in itself or prohibited by law.”
We have seen above, to my own satisfaction at least that the plaintiffs and defendants in the case at bar cannot be considered as partners for the want of an intention on their part to establish that relationship, as expressed by the language of the contract, as well as the lack of mutuality of its terms. 1 It cannot be claimed that the plaintiffs are entitled to this remedy for the purpose of following their money or property in the hands of the defendants and claiming a share of its product or earnings, for they have placed neither money, property, or services there. .They haAre gWen to the defendants, so far as they could, the
It may be claimed that the defendants having done business in the name of the plaintiffs, are estopped to deny the interest of the plaintiffs in that business. That would probably be so could the plaintiff’s case ever reach the .point at which the defendants are required to develop their defense, but the difficulty is in the inherent weakness of the plaintiff’s case. They cannot reach the enemies’ works except through the contract, which, by reason of its illegality, is “no thoroughfare” for them. The judgment of the district court is reversed, and the cause dismissed.
Reversed and dismissed.