107 S.W. 631 | Tex. App. | 1908
The parties to this controversy were partners in handling sheep under a verbal contract which was subsequently reduced to writing and was as follows: "This agreement entered into this day between L. T. Johnston and Luther Steele, to the following effect: L. T. Johnston has leased and improved a certain pasture in Stonewall County, Texas, of thirteen (13) sections, one school section taken up by Luther Steele, upon which he has expended ($1000) one thousand dollars; that is, Johnston has expended $1000, more or less. Johnston has control of it. Luther Steele has it in charge. They both have about 4000 sheep in this deal. Johnston stands good for all the sheep in Haskell and adjoining counties, and we both divide the profits, net; which means when sold and expenses paid, Johnston and Steele divide half and half after Johnston gets cost and in cash on sheep. Johnston is considered the owner and controller of this land and sheep, Steele in charge. When pasture sold, if sold, they divide the profits, over and above what Johnston put in. (Signed) L. T. Johnston, M. L. Steele. Signed in my presence, this 11-11-98. L. W. Dalton."
It seems that no profits resulted from the venture and by this suit plaintiff in error mainly sought to hold defendant in error liable for one-half the losses. We can not agree with him, however, on the interpretation placed on the contract of partnership. As we understand it, Johnston was to furnish the sheep, and out of the proceeds of the sale thereof expenses were to be paid. Steele, on the other hand, was to give his time and attention to the business and share in the profits. It results from this view that the *337 principal assignments of error must be overruled, complaining, as they do, that the court erred in submitting the construction of the contract to the jury, since if it had been construed by the court it could not have benefited plaintiff in error.
There were, however, involved in the issues between the parties other matters which were submitted to the jury and on which there was a verdict in favor of defendant in error for one dollar. We have not been favored with a brief in behalf of defendant in error and are not able to say from the case as presented in the brief of plaintiff in error that no harm resulted from the following clearly erroneous charge: "And if you find from the evidence that by the terms of the partnership agreement the partnership was to pay for the services of the defendant Steele in conducting the partnership affairs, and that said Steele furnished said services, then you will require said partnership in settlement with said Steele to account for the one-half reasonable value of said services at the time and place they were rendered." There was an issue made by plaintiff in error to the effect that defendant in error had used partnership property which had not been accounted for, and it may be that under this erroneous charge that claim was offset by the value of his services, for which clearly he was entitled to no recovery.
The judgment is therefore reversed and the cause remanded for a new trial.
Reversed and remanded.
