171 Wis. 468 | Wis. | 1920
We are not enlightened as to the theory upon which the plaintiff proceeded in this action. Plaintiff carefully refrains from alleging that the plaintiff and defendant were partners. The allegation is “that each was to share equally in the profits.” Manifestly, if there was a partnership, in the absence of an accounting or settlement of the partnership affairs the plaintiff could not maintain this action at law against his copartner. No such accounting -or settlement is alleged or proven. The only other'
The court instructed the jury:
“To entitle him to a favorable verdict the plaintiff must satisfy the jury by the preponderance or greater convincing fo.rce of the credible evidence that the agreement he claims was made between him and the defendant. A contract or agreement implies a meeting of the minds of the parties; that is, that they understand the proposition involved alike, the one consenting or agreeing to exactly the same thing the other does.” ,
The jury found that there was a contract, and the vital question in the case is whether or not there is evidence sufficient to sustain the finding of the jury. The evidence is practically uncontradicted, and where contradicted we take as true that in favor of the plaintiff.
It appears that plaintiff was an experienced engineer or shovelman. The defendant went to the house of the plaintiff and requestéd the plaintiff to inspect a shovel which the defendant was using at the time. This was some time in the month of July. During the conversation the plaintiff told the defendant there was a good job coming to him which had not yet been advertised; whereupon the defendant asked the plaintiff how he would like to' be in with him, and the plaintiff responded, “All right, Markus, I think we could make some money.” The defendant said, “I would like to have you with me.” The plaintiff responded, “Well, if that job comes maybe we can land it.” After the city had advertised for bids plaintiff, accompanied by a friend who was in the employ of the defendant, went to the defendant’s house. The defendant did not have the plans, but by arrangement the three met the next day and looked
Outside of the talk that was had on August 15th to the effect that the plaintiff was to get $500 as his share of the Fairfield avenue job, which was to be credited one half on the amount due from him to the defendant on the equip
As good a way as any to test the matter is to inquire whether or not in the event the contract had sold at a loss Thompson could have held the plaintiff for one half of the loss. Certainly if the contract is not. binding one way it is not the 'Other, where, as here, there is no consideration •except the mutual promises of the parties. Down to the 15th there is nothing showing the subject matter with which the contract was to deal; how long it was to continue; what part of the capital, if any, was to be furnished by each partner; how much was to' be allowed to the partners for services rendered;, whether each partner was to give his entire time to the partnership business; or any other agreement definite and certain enough to be enforceable by either of the parties. What, if anything, did the plaintiff contract to do? Mutuality of obligation is absent. Hopkins v. Racine M. & W. I. Co. 137 Wis. 583, 586, 119 N. W. 301; 2 Page, Contracts (2d ed.) § 569.
The evidence falls far short of sustaining an executory agreement for a partnership, in the absence of which the plaintiff cannot recover in this action. There is no showing whatever as to what liability, if any, there remains on account of the contracts not transferred to Franzen, or any attempt to show any adjustment of the partnership affairs. The plaintiff reaches out for one half of the profits on a good contract, and denies' all liability or responsibility as regards the others. His refusal to proceed unless the defendant should “come clean,” as he phrases it, which no doubt meant pay over one half of the $2,800, did not place him in a position where he can maintain an action at law for unascertained profits.
By the Court. — Judgment reversed.