106 Ala. 189 | Ala. | 1894
— The appellant, plaintiff below, sued to recover for services rendered. In consequence of certain rulings of the court, the plaintiff suffered a non-suit with a bill of exceptions. — Code, § 2759.
Where a party seeks to recover damage for a breach of a special agreement-, the plaintiff should count upon the contract and aver the breach. Where, however, the contract has been fully performed on one side, and nothing remains but the payment of money, he may maintain the action upon the common counts, and introduce the agreement as evidence of the value of the services, or of the amount due. On this question the court held rightly.
After the evidence has closed and the parties have gone to the jury, it is within the sound discretion of the court to permit either party to introduce further evidence It is only just that where one party is permitted thus to introduce evidence to allow the opposite party' to introduce explanatory or rebutting evidence. The plaintiff was permitted to introduce in evidence the
The material question in the case arises upon the construction of the agreement between the parties, which was in writing. The court declared that the legal effect of the argreemonb was to create a partnership, and that by virtue of its provisions the plaintiff and defendant were partners inter sere. A partnership inter sere being established, it is conclusive as to the obligation of the partners to third persons, but the converse is not equally true. There may be a partnership between parties as to strangers when the relation does not'exist inter sere. We are of opinion that a partnership inter sere cannot be said to exist where the terms of the agreement show affirmatively that the pirties as between themselves are not bo uni as principals upon the obligations of the concern, although they may be liable as principals, jointly and severally, to third parties. We cannot conceive of a partnership in a legal sense between two parties in a transation, when if one of them is compelled to pay an obligation he has no recourse on the other. An agreement by which one is to share in the profits alone does not create a partnership. The agreement should bind the parties to bear the burden of losses. 'One who is to receive for his share a precentage of net profits, and, if there are no profits, is to be.paid nothing, in one sense is affected by losses, but if by the agreement he is to contribute nothing to make good the loss, if he is under no legal liability therefor, he does not bear the burden of losses in its legal signification as an element of a partnership. — Couch v. Woodruff, 63 Ala. 466; Pulliam v. Schimpf, 100 Ala. 362. The court construed the agreement in this case to create a partnership. The contract became such by the acceptance by' plaintiff of a written proposition made to him by the defendant. The proposition was to éraploy the plaintiff as timber inspector “in my business of timber and log broker.” It proposes to pay “a stipulated salary of one dollar, per month, and in addition thereto a sum of money equal to forty per cent of the net amount” of certain specified sources of revenue .from the business. It contains also
The non-suit wiil be set aside, and the cause reinstated, that it maybe prosecuted as herein indicated,
Reversed and remanded.