99 P.2d 1013 | Or. | 1940
On the 11th day of July, 1939, this case was instituted by Mr. S.J. McKee, now deceased. On or about the 24th day of August, 1939, Mr. McKee died. On August 29, 1939, his widow, Gertrude Dickinson McKee, was appointed administratrix of his estate; *3 and upon September 13, 1939, Mrs. McKee, as such administratrix, was substituted as plaintiff herein.
During the trial in the circuit court, it appeared from plaintiff's testimony that the equipment was furnished and the services performed, for which recovery is sought herein, by plaintiff's intestate pursuant to an agreement with defendants, which created the relation of joint adventurers between them.
We quote from plaintiff's testimony on cross-examination:
"Q. Now do you remember the day when you and Mr. McKee talked with Mr. Hurley and Mr. McKenney at the dairy? Remember when that was?
A. It was the latter part of June, I wouldn't say just what day, and Mr. Hurley said he would furnish the turkeys and feed and Mr. McKenney would furnish the range and Mr. McKee do the work. Mr. McKee would do the over-seeing, would do all the over-seeing, furnish the brooding and over-see the birds through."
We quote further from her testimony on cross-examination:
"Q. You have told us that. You said at that time there was nothing said as to what Mr. McKee was to have?
A. There was not.
Q. Mr. Hurley said he would take care of the money and all and would run the turkeys on Mr. McKenney's ranch and Mr. McKee was to use his brooder house and his equipment and see the flock through the summer. *4
Q. You have told us that.
A. At that time — they were to divide the profits. If they went behind they were each to pay their part and if they made anything, they were to divide.
Q. Was that discussed that first time when you were at the dairy?
A. That was the beginning of these turkeys.
Q. What was said about what Mr. McKee was to receive for this work in dollars and cents?
A. One-third of what they got on those turkeys when sold.
A. He was supposed to have one-third of what was made on the turkeys raised on McKenney's ranch.
Q. Did they have any other agreement on what was to be paid, on that day, do you remember?
A. They had not.
Q. That is the agreement he operated under?
A. He did.
Q. And no other agreement?
A. No other agreement.
A. One-third the profits. That is exactly it, and they denied it all, and that is the reason I came to them for wages, I figured we should have the wages."
"A joint adventure is analogous to, but not identical with, a partnership. It has been defined as, `An association of two or more persons to carry out a single *5
business enterprise for profit' (Fletcher v. Fletcher,
"Generally speaking, it may be said that practically the only distinction between a joint adventure and a partnership is that the former relates to a single transaction * * * while the latter relates to a general business of a particular kind." Annotation, 48 A.L.R. 1060, citing authorities.
"Though a joint adventure is not, in a strict legal sense, a copartnership, the rules and principles applicable to the partnership relation govern and control the rights, duties, and obligations of the parties as to each other." Ibid, citing Church v. Odell,
"The rule is quite general that an action at law will not lie in favor of one or more partners or their representatives against one or more copartners or their representatives upon a demand growing out of a partnership transaction until there has been a settlement of account and a balance struck: 15 Pl. Pr. 1005; Wilson v. Wilson,
Many authorities supporting this rule, including these, are collated in Vol. 21, A.L.R., p. 34. A supplementary annotation is given in Vol. 58, page 621, ibid.
We are aware that an exception to the rule may be recognized when a partnership is formed to carry out a single transaction or venture, which is fully closed and does not involve complicated accounts, one partner may maintain an action at law against his copartner for his share of the profits or losses of the venture without first having a formal accounting; but neither the pleadings nor the proof herein disclose such a state of facts. While there are other exceptions to the rule unnecessary to record here, the instant case does not fall within the scope of any of them.
As stated, plaintiff's testimony was to the effect that there was the relationship of joint adventurers between the parties defendant and plaintiff's intestate with regard to the transaction upon which plaintiff seeks a recovery.
The case of Ingram v. Basye,
In the case of Roberts v. Gerlinger,
In Estate of McLain,
We quote from the McLain case:
"The general rule is that where one person at the request of another performs beneficial services for him, unless it is agreed or it can be so inferred from the circumstances that the services were to be rendered without compensation, the law, in theabsence of any express contract, will imply a promise on the part of him for whom the services were rendered to pay for them what they were reasonably worth." (Italics supplied.)
As stated, in the case at bar, there was an express contract between the parties by which the relationship of joint adventurers was established.
In Reichle v. Willamette Tribe, No. 6,
In Toy v. Gong,
William v. Ledbetter,
In support of her contention that a contract of employment will be presumed when services are rendered by one person for another, plaintiff cites Vol. 2, Nichols Applied Evidence at page 1932, § 1, and at page 1936, § 20. The cases cited in support of the rule stated in these sections recognize that this presumption is applicable only in the absence of evidence to the contrary. In fact, section 20, supra, so states.
The rule quoted by plaintiff from Nichols Applied Evidence, Vol. 4, p. 3451, § 13, to the effect that a partnership cannot be established by the declarations of one of the alleged partners, has no application to the case at bar, because plaintiff herself testified to the facts disclosing the relationship of joint adventurers between her intestate and defendants.
West v. Eley,
We think that plaintiff could recover only the amount stipulated to be paid. Sinnock v. Zimmerman,
For these reasons, we hold that there was a failure of proof by plaintiff, and the circuit court committed no error in sustaining defendants' motion for an involuntary nonsuit.
The judgment of the circuit court is affirmed.
RAND, C.J., and LUSK and BELT, JJ., concur. *10