Terry v. Carter

25 Miss. 168 | Miss. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

This action was brought by the plaintiff in the circuit court of De Soto county, to recover damages for a breach of the following agreement as set out in the declaration, to wit, " The said plaintiff and defendant were to work and crop together on the same farm, in the year 1847, on the following terms and conditions, to wit, the defendant was to furnish the ground, horses, gear, ploughs, &c., and the said plaintiff was to work upon said farm and in said crop himself as a hand, and out of the proceeds of said crop, raised as aforesaid, the said plaintiff and defendant were to severally take and have as follows, to wit, the plaintiff was to have one sixth part of all the cotton, corn fodder, &c., and the defendant the remainder.” The declaration then states that the plaintiff performed the contract as fully on his part as the defendant would permit him; that he worked and labored two or three months, when defendant dismissed him, and refused to permit said defendant to perform his part of the contract. The declaration was demurred to, and demurrer overruled by the- court. The main cause of demurrer is, that the contract shows a copartnership, and that the action for a breach thereof cannot be sustained at law.

This position is untenable, conceding that there was a co-partnership. An action may be sustained by one copartner, at law, to recover damages for a breach of the articles or terms, off the contract. 8 Mass. 464; 4 Bibb, 418; Gow on Partnership, 70, 71.

Judgment affirmed.