| Ill. | Dec 15, 1908
delivered the opinion of the court:
This is' an action in assumpsit in the circuit court of LaSalle county brought by appellee, against appellant, in relation to the division of the profits of certain real estate sales. On the trial in that court a judgment for $2000 was rendered, which, on appeal to the Appellate Court for the Second District, was affirmed, and a further appeal has been prosecuted to this court.
Appellant was a resident of Whiteside county, and for a few years previous to this litigation had been engaged in buying and selling farm property in that vicinity. Appellee resided and was widely known in LaSalle county. Appellee’s proof tended to show that he was employed by appellant to assist in the sale of land on the agreement that he was to receive one-half of the profits, after deducting necessary expenses, for any land sold to buyers brought to .appellant, directly or indirectly, through his efforts. Appellant contended that he had only agreed to pay appellee one dollar per acre for such sales, with perhaps extra pay, at En-gel’s option, in case of a good trade being made.
Appellant contends that the testimony of appellee proved, if anything, a partnership, and therefore the action should have been brought in equity and not in a court of law. Neither party claimed that there was a partnership in the sale of these lands. A partnership is never created between parties by implication or operation of law, apart from an express or implied intention and agreement to constitute the relation. (Bushnell v. Consolidated Ice Machine Co. 138 Ill. 67" date_filed="1891-05-13" court="Ill." case_name="Bushnell v. Consolidated Ice Machine Co.">138 Ill. 67.) Even where the parties agree to enter into a joint enterprise and share in the profits, a partnership, as between themselves, does not necessarily result. The intention of the parties always controls. (Grinton v. Strong, 148 Ill. 587" date_filed="1893-10-26" court="Ill." case_name="Grinton v. Strong">148 Ill. 587; National Surety Co. v. Townsend Brick Co. 176 id. 156.) While a different rule might prevail on this evidence as to the creditors seeking to hold defendants as partners, it is very clear from this record that neither appellant nor appellee intended a partnership. The court was warranted in refusing the instructions as to partnership, which refusal is complained of here by appellant, because there was no proof upon which to base such instructions, and for the further reason that they did not take into account the intention of the parties.
The further contention is made that there was a settlement between appellee and appellant, which would bar recovery. The testimony shows that March 30, 1906, a few days before this suit was begun, appellant sent a check to appellee for $423, accompanied by a letter stating that it was in settlement of balance on commissions due Reed on account of land sales made by him. Before cashing this check appellee visited appellant at his home and said he wanted a settlement. Appellant replied, “You got a settlement, didn’t you? Didn’t I send you a statement?” to which appellee replied, “Did you consider that draft a full settlement with me?” and appellant replied, “Yes; I was figuring it over yesterday and find I sent you more than was coming to you.” Appellee then replied, “If that is so, all right,” and turned around and went away. This is appellee’s testimony. The appellant’s testimony on this point agrees in substance. Appellee thereafter cashed the check. It is contended that in so doing he. knew it was claimed to be a full settlement and therefore it must be held to be a complete defense to an unliquidated claim. It appears from the record that appellee kept no books of their transactions and did not know at what prices the lands sold were listed or what the expense of sale was, and had no means of learning the details except from appellant, who did possess them. If the jury believed that appellee, before he consented to accept the check in question, was deceived by appellant as to the amount of one-half the profits from the sale of the lands, then the cashing of this check cannot be held to be an accord and satisfaction of the claim. That was a question for the jury. 1 Cyc. 338; Hefter v. Cahn, 73 Ill. 296" date_filed="1874-09-15" court="Ill." case_name="Hefter v. Cahn">73 Ill. 296.
The cases of Papke v. Hammond Co. 192 Ill. 631" date_filed="1901-10-24" court="Ill." case_name="Papke v. G. H. Hammond Co.">192 Ill. 631, and Jackson v. Security Life Ins. Co. 233 id. 161, and similar authorities, to the effect that a release under seal cannot1 be impeached except in a court of equity unless fraud has entered into the actual execution of the instrument, are not in point. No release of any kind was signed in this case.
Appellee was not required to return the check before beginning this suit. It is sufficient that the amount of the check was credited to appellant’s account. Farmers and Mechanics Life Ass. v. Caine, 224 Ill. 599" date_filed="1906-12-22" court="Ill." case_name="Farmers & Mechanics Life Ass'n v. Caine">224 Ill. 599; Pawnee Coal Co. v. Royce, 184 id. 402; Hefter v. Cahn, supra.
The instructions on accord and satisfaction were properly refused by the trial court, as they did not take into consideration that the alleged settlement was claimed to have been obtained by a misstatement of facts known only to the party relying on such accord and satisfaction.
The contention of appellant that the evidence does not justify the amount of the verdict was a controverted question of fact, which cannot be inquired into by this court on this record. First Nat. Bank v. Miller, 235 Ill. 135" date_filed="1908-06-18" court="Ill." case_name="First National Bank of El Paso v. Miller">235 Ill. 135; Chicago City Railway Co. v. Martensen, 198 id. 511.
We find no reversible error in the record, and the judgment of the Appellate Court will therefore be affirmed.
Judgment affirmed.