21 Vt. 544 | Vt. | 1849
The opinion of the court was delivered by
As the plaintiff’s counsel has not urged the right to recover for those items in the account, which were disallowed by the auditor, we shall consider the claim as limited to the two first items of the account. It is contended, that for these items there can be no recovery in this form of action. The objection is, that the plaintiff and defendant were partners in the earnings of the vessel ,• or, at least, that the defendant was but the bailiff and receiver of the plaintiff, in respect of those earnings, and not his debtor in the ordinary sense of that term. And if either of these propositions is sustained, it must be conceded, that the plaintiff has mistaken his remedy. But as the contract is stated by the auditor, we are satisfied, that it did not create a partnership. Upon the most favorable construction for the defendant, it would be a contract to divide the gross earnings, and not to share in the ultimate profit and loss. We think, however, that a division by the two parties was not contemplated, but that the defendant bound himself to pay to the plaintiff a moiety of the earnings, and that simply as a compensation for the use of the vessel. Such a relation between parties comes far short of a partnership. Benjamin v. Porteus, 2 H. BI. 590. Wilkinson v. Frasier, 4 Esp. 182. Dry v. Boswell, 1 Camp. 329. Bradley v. Ambler, 6 Vt. 119. Bowman et al. v. Bailey, 10 Vt. 170.
The second ground of objection to this remedy would seem to suppose a joint interest in the earnings of the vessel, though it might not amount to a partnership interest. But that was by no means a necessary result from the contract. Indeed, we consider, that the entire interest was in the defendant, until he should sever the earnings and pay to the plaintiff the one half. And so the defendant probably understood it, as he conducted the business, and made all the contracts for freighting, in his own name. Instead, then, of a joint interest being created, an indebtedness arose, to be measured by the amount of business done. And in this view it does not follow,, that .this form of action must be denied as a competent remedy,
The case is supposed in argument, of other property than money having been received by the defendant. In that event, if the property were divisible, he had only to deliver to the plaintiff one half of it; and if not divisible, he could probably have discharged himself by conveying to the plaintiff an undivided half. But if he did nothing in either case, but to appropriate the whole to his own benefit, he would render himself liable, as in other cases of non-payment.
No substantial difficulty arises in this case from the manner in which the charges were made, nor as to the time when the right to charge accrued. The plaintiff ought, in strictness, to have charged the use of his vessel, fixing the sum with reference to the amount of the defendant’s receipts in the business, instead of charging the receipts directly, as he has done. But this is matter of form merely, and cannot be allowed to affect the result of the case. /Stone v. Pulsipher, 16 Vt. 428. The proper time for charging the use of the vessel was doubtless at the end of the sailing season.
We think it obvious, that the first item in the defendant’s account was properly disallowed. It is needless to inquire, how the claim might be considered, did it appear that the defendant originally gave credit to the plaintiff as his debtor for transporting the lumber, and that the plaintiff was apprised of that fact before he settled with Everts. For, as all this is negatived by the report, it would be manifestly unjust to permit the defendant now to cast a liability for that service upon the plaintiff, and thus compel him to pay a second time. Judgment of county court affirmed.