Heran v. Hall

40 Ky. 159 | Ky. Ct. App. | 1840

Chief Justice Robertson

delivered the Opinion of the Court.

■ It seems to this Court, that the Chancellor’s decree dismissing Heran’s bill, seeking a decree against Hall for one half of the loss of capital advanced by the former, for corn bought by the latter in Illinois and Missouri, and shipped to Neio Orleans, under a contract between them, stipulating that Ileran should “furnish the (money) capital,” and Hall should purchase and ship the corn, and that the profits of the adventure should be equally divided between them, should be affirmed.

There being no written memorial of the agreement, and the facts exhibited being vague and rather indeterminate, as to the precise terms or effect of it, we acknowledge that we are not perfectly satisfied that the parties did not intend to be partners in the capital, the corn, and the losses as well as the profits. But we are inclined to concur with the Chancellor in the deduction that the money capital was “furnished” by Heran, for himself alone, and not merely advanced equally for himself and Hall; that Hall’s only capital was his services, his only interest a share of the profits; and that, therefore, he was not a joint owner of the com, nor liable for any portion of the loss of capital resulting from the sale of it.

It is a general rule, applicable especially to such a single adventure as that in which the parties in this case were engaged, that when the capital of one party is money, and that of the other is labor, or other personal service, they are not partners, inter se, in the technical sense merely, because they had a mutual interest in the profits, and that, nothing else appearing, even considering them partners in the stock, he whose capital w'as labor, would not be liable to him whose capital w^as money, for contribution for any loss of capital in the adventure: for, in such a case, each will have sustained a correspondent loss of his capital, and neither of them would, therefore, be liable to the other for contribution.

Owsley for appellant: Pirtle and J. T. & P. C. Morehead for appellee.

In this case, if, as we are disposed to consider the more probable, Hall was to furnish no other capital than his services, and, operara pro pecunia valere, was, therefore, to receive a share of the profits, even had the purchase of the com been, in fact joint, he would not be liable for the loss on Reran’s capital.

Wherefore, as we cannot decide that any portion of the money contributed by Reran was advanced to the use of Hall, as apart of his capital, we do not feel authorized to disturb the Chancellor’s decree, which is, therefore, affirmed.