135 Wis. 178 | Wis. | 1908
The following opinion was filed January 28, 1908:
Among the many questions of fact and law controverted by counsel there is one the answer to which is so fundamental and decisive of the case as to render consideration of'the others immaterial. For the purposes of that question it may be assumed that the findings of the jury mentioned in the statement of facts are all sustained by the evidence, and that the contract on plaintiffs’ part has been so fully executed as to take it out of the statute of frauds, and that the option which they purported to hold and which they transferred was of sufficient validity to serve as a consideration for defendant’s promise. But, after conceding all such matters, it is still urged that plaintiffs’ promise was merely to launch and conduct partnership dealings in real estate and is therefore void under the statute of frauds. Bird v. Morrison, 12 Wis. 138; McMillen v. Pratt, 89 Wis. 612, 631, 62 N. W. 588; Seymour v. Cushway, 100 Wis. 580, 16 N. W. 769; Smith v. Putnam, 107 Wis. 155, 82 N. W. 1077, 83 N. W. 288; Scheuer v. Cochem, 126 Wis. 209, 213, 105 N. W. 573. An accurately inclusive and exclusive definition of partnership seems to have eluded the capacity of courts to express. It was said by the late chief justice in Sullivan v. Sullivan, 122 Wis. 326, 99 N. W. 1022:
“A very learned English master of the rolls (Sir G-eoege Jessed) refrained from making any attempt to define a partnership, because there had been so many attempts with*181 no two agreements, except in a general way. Pooley v. Driver, L. R. 5 Oh. Div. 458, 471. In that case it whs held that: ‘In the absence of something in the contract to show a contrary intention, the right to share profits as profits constitutes, according to English law, a partnership.’ ”
A definition was thus phrased by Baedeew, J., in Serfling v. Andrews, 106 Wis. 78, 81 N. W. 991:
“The usual test of a partnership is whether there is a community of interest in the profits and losses of the business. Any arrangement which gives the parties such a community •of interest constitutes them partners.”
Lyon, C. J., in Spaulding v. Stubbings, 86 Wis. 255, 262, 56 RAW. 469, approved a more specific definition from 1 Bates, Partn. § 1:
“A partnership is the contract relation subsisting between persons who have combined their property, labor, or skill in an enterprise or business as principals for the purpose of joint profit.”
But this definition is far too limited to stand the test of practical application. There need be no combining of property, for one alone may contribute all the property. Neither need there be combining of skill or labor, for this, too, may be the contribution of only one partner. Treat v. Hiles, 63 Wis. 344, 32 N. W. 517. Again, it has been held that there need be no express agreement for any sharing of losses. Clinton B. & I. Works v. First Nat. Bank, 103 Wis. 117, 122, 79 N. W. 47. Thus we are brought back to the ono •element relied on by Sir Geobge Jessel, of a community of interest in the profits of the business as profitsj and yet this is elusive and difficult of application, for there are many decided cases which have denied a partnership notwithstanding an agreement that some proportion of the profits should be received by the party sought to be charged as a partner. 'This, however, will be found to have been on the ground that it was apparent from the whole transaction that it was
After careful consideration of the situation it appears to us that the contract expressed in the first finding of the jury in the present case, as amplified by the undisputed evidence, shows a mutual contribution of property to' an enterprise or adventure for the purpose of making profits therein in which the two parties were to be mutually interested as partners, and not merely by way of compensation measured by the profits which the defendant should malee: We reach the conclusion that there was mutuality in the contribution of property to the enterprise to be entered upon for the reason that it is obvious that both parties considered the so-called option of value. It might have had no legal and irrevocable validity as between Farwell and the plaintiffs, and yet, before plaintiffs and the defendant negotiated, it had become apparent that Farwell purposed to be controlled by a moral obligation which rendered that option effective through the term thereof to enable the plaintiffs to purchase the lands, but more especially to exclude the defendant or any one else'
Contention is made by the respondents that the invalidity by reason of the statute of frauds of such contract cannot be raised unless pleaded, and cite us to a collection of cases in 9 Ency. PI. & Pr. Y05, wherein it is held that the defense of the statute is waived unless specially pleaded. It was noticed in Brandeis v. Neustadtl, 13 Wis. 142, and again in Smith v. Putnam, 107 Wis. 155, 163, 82 N. W. 1077, 83 W. W. 288, that our statute — secs. 2302 — 2304, Stats. (1898)— differs radically from the statute of frauds of England and of most of the states, in that, while they declare that such contracts, unless in writing, shall not be received in evidence or shall not be made the foundation of an action, ours declares that the inhibited contracts shall be “void,” from which would seem to result .the proposition that, when the plaintiff counts on such a contract and the same is not ex
The result is that the evidence is conclusive that the agreement described in the first question of the special verdict was not made, and the affirmative answer of the jury should have been reversed on defendant’s motion to- that effect, whereupon judgment for defendant should have been rendered.
By the Court. — Judgment reversed, and cause remanded with directions to render judgment for defendant.
• The respondents moved for a modification of the mandate so as to grant a new trial or permit the court below to grant a new trial, or for a rehearing in this court.
In support of the motion there was a brief by Reid, Smart & Curtis for the respondents, and a brief by W\ H. Frawley <& T. F. Frawley, amici curice.
In opposition to the motion there was a brief by A. W. Smhorn, attorney, and John Barnes, of counsel.
The motion was denied March 31,1908.