Strauss v. Mendelsohn, 63 Pa. Super. 504

Strauss v. Mendelsohn

63 Pa. Super. 504 | Pa. Super. Ct. | 1916

Opinion by

Trexler, J.,

The court below entered judgment for want of a sufficient affidavit of defense. It was admitted by both sides that the case must be determined upon the construction of Exhibit “A,” forming part of the plaintiff’s statement of claim and which appears in the reporter’s notes. It will be observed that the first clause in the agreement is a definite promise to pay to the plaintiff the sum of $1,300.00. To this promise there are three conditions annexed. The first is that instead of paying interest on the amount, the defendant promised to pay to the plaintiff 40% of the profits earned by the business in which he was engaged provided the profits exceeded $2,500.00, and that $500.00 of the profits was to be put back in the business. The second condition was that if less than $2,-500.00 was earned in the business, the promise to pay was to be renewed for another year on the same terms and conditions, and the third condition was that if the business showed a loss plaintiff agreed to accept another promise to pay the $1,300.00 less 15% on the same terms and conditions for another year.

A large part of the discussion in the paper books is devoted to the question as to whether this agreement constitutes a partnership. It will be observed that it is not signed by both parties. It is but a promise on the part of the defendant to pay, depending upon the success of the business, a certain sum in lieu of interest. There is nothing in the agreement which indicates that the plaintiff is to be a partner in the business. Whether it has that effect' as far as the creditors of the defendant are *507concerned is not involved in the present controversy. A mere participation in the profits of a business will not make the parties partners, inter se, whatever it may do to third persons, unless they so intended: Kaufmann v. Kaufmann, 222 Pa. 58 (68). It appeared by the pleadings that the business of the defendant was conducted at a loss. His promise to pay on April 15, 1914, under the third clause of the agreement was continued for the period of another year and the amount of the sum to be paid was reduced by 15%. We cannot construe the agreement as indicating that there was any obligation on the part of the plaintiff to wait longer than a period of two years. The promise to accept an extension of the time was for another year and at the expiration of said year the promise to pay became absolute. In other words, on the 15th of April, 1915, the promise to pay the $1,300.00 less the 15% became absolute. Suit was brought May 10, 1915. We think the learned judge of the lower court was fully justified under the pleadings in entering judgment for the plaintiff. As the agreement of the parties was in writing and the facts as disclosed by the pleadings are undisputed, the same conclusion would have necessarily followed upon trial of the case.

Assignments of error are overruled. Judgment affirmed.