110 Ga. 343 | Ga. | 1900
It appears from the record that Blasingame owned the peaches growing on twenty acres of land. He sold a one-half undivided interest therein to Turwilliger for $300, and at the same time borrowed of him $200. He gave Turwilliger a receipt, wherein these facts were stated, and wherein it was stipulated that Turwilliger should “own and control the shipments and sales of said fruits until he has been reimbursed for said $200 advanced.” This receipt was dated June 30, 189G. On July 2, thereafter, Blasingame, as a member of the firm of Blasingame & Turwilliger and on their credit, purchased of Gray Brothers 1290 peach crates at ten cents each, making $129; for which Blasingame and Turwilliger were sued as partners. Turwilliger’s first plea admitted the partnership, but he subsequently amended by withdrawing that admission and denying the existence of any partnership between him and Blasingame. The plaintiffs introduced as a witness Blasingame, who testified that there was a partnership between him and Turwilliger, that he boiight the crates from the agent of Gray Brothers, and that they were used by the firm. Another witness testified that Turwilliger had admitted to him, two years after the sale of the crates, that there had been a partnership, but had claimed that Blasingame had paid for the crates. Turwilliger testified that he had never been a partner of Blasingame, and had never had any intention of becoming one. We do not put our decision upon the evidence of either party, but upon the agreement entered into by them and evidenced by the writing signed on June 30, 1896. This agreement shows that Blasingame and Turwilliger entered into it for the purpose of earning profits out of the venture. It is true Turwilliger was permitted, by the terms of the agreement, to “own and control the shipments and sales” of the peaches until he was reimbursed, but this, in our opinion, did not prevent the agreement from being one of partnership. If one partner borrows money from his co-partner, as between them he has the right to give a mortgage or lien, or to make an arrangement whereby the lender can secure the advance out of the partnership property or out of the profits of the business. The borrowing partner has the right to waive in behalf of his copartner all profits arising from sales
After considerable study of the authorities and much reflection, we have come to the conclusion that our learned brother of the trial court erred in holding that the agreement above mentioned did not constitute Blasingame and Turwilliger partners,, at least as to third persons.
Judgment reversed.