Northwestern Transfer Co. v. Investment Co., 158 P. 281

Northwestern Transfer Co. v. Investment Co.

158 P. 281 | Or. | 1916

Mr. Justice Bean

delivered the opinion of the court.

1-3. It is the contention of plaintiff that in accordance with the terms of the contract a partnership was created between the parties of the first part and the Investment Company, and that the latter, after purchasing the property, held it in trust for the other parties: Section 715, L. O. L.; Egan v. Oakland Ins. Co., 29 Or. 403, 411 (42 Pac. 990, 54 Am. St. Rep. 798). In the construction of written agreements the intention of the parties is to be pursued if that can possibly be done: Section 716, L. O. L.; Weidert v. State Ins. Co., 19 Or. 261, 270 (24 Pac. 242, 20 Am. St. Rep. 809). The agreement entered into between the parties in this case does not establish a partnership between the plaintiff and the defendant Investment Company, for the following reasons: (1) There is no stipulation to share in the profits and losses of the business: Hanthorn v. Quinn, 42 Or. 1, 7 (69 Pac. 817). (2) There is no community of interest between the parties in the subject matter of the contract: Shebley v. Quatman, 66 Or. 446 (134 Pac. 68). And (3) there is no inten-; tion manifested by the parties to become partners: North Pac. Lbr. Co. v. Spore, 44 Or. 462, 470 (75 Pac. 890). There was, however, a partnership created between the other parties signing schedule A, including the plaintiff. Accordingly, each member thereof is a principal having- a joint interest in the partnership property and an agent of his assistants in dealing with *80third persons concerning partnership transactions: Hanthorn v. Quinn, 42 Or. 1, 7 (67 Pac. 817).

4. The plaintiff complains that it was not consulted nor advised as to advances made by the defendant to the first parties. However, it cannot avoid the acts of its copartners in dealing with the Investment Company in this case by asserting that it had no knowledge of them, for the reason that notice to one partner in reference to any matter relating to a transaction within the scope of the firm’s business is notice to all of them: 30 Cyc. 530.

5. According to the terms of the contract and the evidence in the case, the Investment Company agreed to sell the lots mentioned at a certain price, and agreed to and did loan money to the other parties to the agreement who entered into a joint venture in building a house for sale. It may not have been a wise contract for the plaintiff to make; but that is a matter solely for it as the court cannot stipulate for it. The parties of the first part, as they are generally termed, having failed to purchase the lots or make any sale of the house and lots, the only thing remaining for the defendant to do was to sell the same substantially as in a foreclosure in order to obtain its just dues.

It is complained that the Investment Company charged interest on the price of the lots to which it was not entitled, but it is not necessary to discuss this matter, as without such interest there would still be left an amount greater than that bid for the lots. In order to do equity, the parties interested should pay the amount due to the Investment Company or redeem the property. " -There is little controversy in .regard to the facts in this case. The construction of the con*81tract of the parties determines the issue. The decree of the lower court was correct, and is affirmed.

Affirmed.

Mr. Justice Burnett not sitting. Mr. Justice Eakin absent.