20 Ill. App. 509 | Ill. App. Ct. | 1887
The contract of January 2, 1885, between Woodward and Guibout and appellant, did not constitute appellant a partner in the business which Woodward and Guibout were to conduct in St. Louis. True, the word “partnership” is used to designate the relation of the parties, but the whole agreement shows plainly that Sailors was a joint owner merely, and that the business was to be conducted wholly by the others, and they were to have the entire profits accruing, and bear all losses that might happen in running the business, till, at the end of two years, Sailors was to come into a participation of the business and thereafter share the profits and losses of the business that should be done. It was a contract which bound appellant to become a partner at the end of two years, but such contract would not make him liable for debts contracted before his relation as partner commenced. The agreement is very explicit that he shall not share the profits nor be liable for the losses. He retained only his one third ownership in the books and good will of the business, and had no control over its management and no right beyond seeing to the preservation of the property. The fact that the parties to such relation themselves call it a partnership will not make it so. Where the question of partnership is to be determined from a contract between the parties to it, the relation must be found from the terms and provisions of the contract, and even though parties intend to become partners, yet if they so frame the terms and provisions of their contract as to leave them without any community of interest in the business or profits, they are not partners either in fact or in law. Parsons on Partnership, 91. A partnership inter se must result from the intention of the parties as expressed in the contract, and they can not be made to assume toward each other a relation which they have expressly contracted not to assume. The terms of the agreement, where there is one, fixes the real status of the parties toward each other.
If there is no agreement, then if they deal with each other as partners, sharing losses and profits, their interest will be gathered from their acts, and they will be partners inter se. Collyer on Partnership, See. 2 and note. A mere community of interest in property will not make the owners partners. There must be an agreement for a joint venture and to share profits and losses; and in the absence of such a mutual agreement they are mere tenants in common of the property and the act of one will not bind the other. Chase v. Barrett, 4 Paige, 148; Nichoff et al. v. Dudley, 40 Ill. 406; Smith v. Knight, 71 Ill. 149.
As the contract did not make appellant a partner, he could only be held on the ground that he had held himself out as one or authorized or assented to his being so held out. Nixon says that he knew appellant was a partner when the books were ordered, but he does not state how he knew it, and it may well be inferred that he only knew from what Guibout told him at the time the books were ordered. The question whether the appellant had been, with his consent, held out as a partner to the plaintiff, was one of fact for the jury ; and it was important that in determining that question the jury should be confined to whatever competent testimony was before them. The statement in Guibout’s deposition that he told Nixon that appellant was one of the firm without proof that appellant authorized the statement, was incompetent, and in view of all the evidence in the ease was calculated to mislead tlie jury. A party has a right .to insist that irrelevant and incompetent testimony shall be excluded. Incompetent testimony in a deposition, though not objected to when the deposition is taken, may be objected to on the trial. The objection is not as to mere form, it is substantial. Cooke v. Orne, 37 Ill. 186; Lockwood v. Mills, 39 Ill. 602.
Mor did appellant lose his right to have the evidence excluded by failing to object to it when read from the deposition. When incompetent testimony gets into the case in the ship e of depositions or otherwise, it is the duty of the court, when required, at any stage of the trial, to exclude it or direct the jury to disregard it. Pittman v. Gaty, 5 Gilm. 186; Greenup v. Stoker, 2 Gilm. 688; Wickenkamp v. Wickenkamp, 77 Ill. 92.
The refusal of the court to exclude the evidence on appellant’s motion was material error, and, while we are much inclined to. the opinion that there was no legal evidence before the jury to support a verdict that appellant was jointly liable, still we prefer to rest the reversal on the error above specified, and remand,the case for such further action as the parties may desire to take.
Reversed and remanded.
