46 Ga. App. 408 | Ga. Ct. App. | 1933
West Lumber Company sued Eckford and Candler as copartners for the value of certain building material furnished Eckford for the improvement of a building leased by him from Candler. The lease contract contained the usual stipulations appropriate to an agreement of that sort. There were additional stipulations which, according to the plaintiff, made the defendants actual copartners. The suit is not based on the idea that Candler held himself out as a partner, but that his agreement with Eckford actually made him one. By the terms of the lease Eckford agreed to pay Candler the unconditional weekly sum of $250 as rental, plus a stipulated amount of the gross income, according to a graduated scale, which Eckford might derive from the business he was to operate in the leased premises. It further provided that Candler was to lend Eckford a specified sum at a stipulated rate of interest to be evidenced by a note, which sum Eckford as lessee was to use in remodeling the building; and, as security for the loan, a stipulated amount of the net income which might be derived from the business was to be set aside and held in trust by Eckford for the benefit of the lender. The lease further provided that, in the event Eckford should expend for improvements more than the sum advanced to him by Candler, he might apply 90% of the net income to himself until reimbursed, prior to the claim of Candler thereon as security for his loan. The court sustained a general demurrer of the defendant Candler, and the plaintiff excepted.
A rehearing was granted in this case on a motion directed mainly, if not entirely, to the original ruling with reference to counts 7 and 9 of the petition. The original ruling as contained in the original paragraph 4 of the syllabus was that the special allegations contained in these counts with reference to the participation by the defendant Candler in the operation of the building could have no relevancy, since it appears manifest that the materials were purchased prior to the facts alleged with reference to the alleged acts and conduct of the defendant Candler in participating in the management and control of the business. The court in its original
The special allegations embodied in counts 7 and 9 of the petition not included in the other counts, as already intimated, relate to the alleged acts and conduct of the defendant Candler with reference to his participation and control over the work of remodeling the building and the conduct of the business itself. It was alleged that, after the business began to be conducted in the building, which consisted in the operation of a dance hall, the defendant participated in the operation of the same; that he insisted upon being consulted, and was consulted, as to what prices should be paid and who should be employed; and that he personally guaranteed the payment of salaries to people employed in the conduct of said business, and supervised the collection of receipts at the door and over the counter. The contention is that, “regardless of how said enterprise was originated, it was as a matter of fact conducted by both of the defendants, and both of them participated personally in its conduct and control,” with the result that the facts show that, no matter what the contract might indicate, they were in fact actual copartners. It must be borne in mind that the facts with reference to the contract, the amendments thereto, the loans to be made, the manner in which they were to be paid, and the security taken for their repayment, were all set forth in these counts as in the other counts. Since it is made to appear by the plaintiff in each of the counts in question that the defendant Candler had leased to Eckford the premises involved at an unconditional weekly rental of a stated
The facts in the instant case differentiate it from the ease of Fleshman v. Collier, quoted from above. In this case every fact and circumstance set forth in counts 7 and 9 is consistent with the relationship of landlord and tenant, and debtor and creditor, as expressly set forth by the petition itself. The burden is upon the
Judgment affirmed.