Hayton v. Appleton Machine Co.
192 N.W. 168
Wis.
1923
Check Treatment

Lead Opinion

Crown hart, J.

As we view this case there is only one question of law to be considered, and that is, Does the agreement between the parties constitute a partnership contract ? A partnership agreement is construed as other contracts, to determine the intent of the parties. Sander v. Newman, 174 Wis. 321, 181 N. W. 822. The agreement here was in writing. In it there was no mention of partners nor of a partnership name. Instead, the business was to be carried on as the “pump department” of defendant’s business. The plaintiff was to receive as salary for his services $40 per week and one half of the net profits Of the business. The business was to be experimental and temporary. If successful, a corporation was in contemplation of the parties to continue the business. The defendant was to furnish the machinery for the experiments, and plaintiff was to have no interest therein. Defendant reserved the right to terminate the contract at pleasure. The expenditures were to be made by the defendant. Books of account were to be kept by defendant, to which plaintiff was to have access at all times. These were a few of the provisions of the agreement. They seemed plainly to indicate the intent of the parties to ^pter a joint adventure but not to enter into a partnership. The lower court correctly so held. Wagner v. Buttles, 151 Wis. 668, 139 N. W. 425; Sander v. Newman, 174 Wis. 321, 181 N. W. 822.

The evidence discloses that the books showed no profits, but on the contrary they showed a loss of nearly $4,000. The books were open to the plaintiff at all times, and he expressed no dissatisfaction with the manner in which they were kept. Besides, statements of account were rendered by the defendant to the plaintiff from time to time, to which the plaintiff took no exception.

No useful purpose will be served by considering the assignments of error in detail, or in reviewing the evidence. Suffice to say that the findings are supported by credible *602evidence, and they cannot be said to be contrary to the great weight or fair preponderance of the evidence. Such being the case, the findings cannot be disturbed. Isaac v. Gerretson Co., ante, p. 417, 191 N. W. 55; Behrend v. Buchmann, 169 Wis. 242, 171 N. W. 958.

The experiments under the contract were profitable neither to the plaintiff nor to the defendant. This was unfortunate, but the court was helpless to grant relief.

The defendant terminated the contract, and it is contended on the part of the plaintiff that after the contract was terminated the defendant continued to manufacture pumps from designs and patterns of the plaintiff. This is denied on the part of the defendant, and the court found against the plaintiff. The findings of fact and conclusions of law of the trial court are all in favor of the defendant. For the reasons stated the judgment of the lower court cannot be disturbed.

By the Court. — The judgment of the circuit court is affirmed.





Dissenting Opinion

Eschweiler, J.

(dissenting). An examination of the testimony in this case impresses me strongly with the view that after the giving of the notice of election by defendant to terminate the relationship between them there was a substantial use made of plaintiff’s ideas and plans in further work by defendant to its profit and for which it should be held accountable to plaintiff. Because of such view I cannot agree with the result reached in the majority opinion.