120 Mich. 204 | Mich. | 1899
Lead Opinion
Plaintiff brought suit in assumpsit against
Defendant claims here that the plaintiff cannot recover in this action, because (1) the parties were partners, the accounts unsettled, and the sole remedy is in equity; (2) it is impossible in the present suit at law to settle the accounts or fix the rights of the parties.
It is unnecessary to set out the whole contract here to ■ determine the question whether the parties were partners. The contract recites that—
“ This contract is made * * * between Thomas Murphy, proprietor of the Murphy Iron Works, of the one*206 part, and George L. K. Morrow, * * * of the other part, whereby the said George L. K. Morrow agrees to manage and superintend the machine and foundry business carried on by the said Thomas Murphy, under the name of the Murphy Iron Works, * * * for which the said Thomas Murphy ágrees to pay the said George L. IC Morrow the sum of * * * ; also that, should Thomas Murphy desire to sell out part or the whole of the business, then this contract ceases at that time. * * * ”
From the wording of the contract, the pleadings in the case, and testimony given by Mr. Murphy, it is evident that the parties did not become partners. The notice under the plea sets out that the work and labor for which the action was brought was done under a special contract or agreement in writing, by the terms of which defendant agreed to hire the plaintiff at an agreed compensation; that the plaintiff left his employment; that he neglected his duties as superintendent, and that defendant was entitled to his best mechanical ability; that, by such inattention to his duties as superintendent and manager, the business of the defendant was injured. Mr. Murphy’s testimony is in keeping with this notice. The fact that the contract provides that the plaintiff should have a share of the profits does not necessarily make the parties partners. The contract simply fixes the measure of plaintiff’s compensation for his services as superintendent and manager. Stockman v. Michell, 109, Mich. 349.
It appeared that three suits were pending against Mr. Murphy at the time this action was brought, and that those suits were still undetermined at the time of the report of the referee. It is contended by defendant that no settlement and adjustment of the accounts could be made, and no' determination of the net profits had, until after these suits were disposed of. Two of these actions were in tort, and the damages unliquidated. In the first suit, defendant was sued in Chicago for libel. The second suit was for the unlawful discharge of an apprentice. The third suit was a case in which Mr. Murphy sued to recover on an account of $625. The defense in that case
It is contended that the referee charged the defendant too much for the iron castings. Castings had been sold during the year 1896 at from two to five cents per pound. The referee fixed the price at two and a quarter cents. The testimony supports this finding.
Defendant claims that the referee erred in refusing to credit -him interest on the part of the purchase price of the plant paid by him. The defendant was receiving 92 per cent, of the profits as a consideration for the investment he had in the business. He also received $3,000 salary per year. We find nothing in the contract which provided for interest on the investment by the defendant, and the referee was not in error in that respect.
There is one item in the account in which we think the referee erred. He found that the plaintiff, while superintendent and manager, was indebted to the Murphy Iron
Rehearing
ON REHEARING.
A rehearing having been granted in this case, we have re-examined the record, and find that an error was committed in charging the plaintiff in the former opinion, ante, 204, in his account, the sum of $357.13. It should be but $128.25, and the judgment will be corrected in that respect.
Counsel for plaintiff contends that, in view of this deduction from the original judgment, the plaintiff should be entitled to his costs in this court. We cannot agree with this contention. The plaintiff recovered judgment and his costs in the court below. That judgment for costs will stand. The judgment will be reduced here by the $128.25, and the costs of this court awarded to the defendant. No costs on the rehearing will be allowed.