Whetstone v. Purdue
213 P. 1014
Or.
1923
Check Treatment
McBRIDE, C. J.

This hаs been a most perplexing case, owing to exceedingly contradictory testimony, part of which indicates that the testimony of some of the witnesses is either greatly colored by prejudice or willfully false. We have not the advantage which the Circuit Court had of observing the demeanor of the witnesses оr their manner upon the stand and those manifestations which enable the circuit judge properly to appraise the value of their testimony. On the onе hand, the plaintiff testifies absolutely to an agreement of partnership practically in accord with his complaint, and other persons, about a dozen of them, testify to statements and admissions of the defendant which tends strongly to corroborate the statements of plaintiff. On the other hand, the defendant absolutely denies the partnership and insists that he was a worker for wages, as alleged in his answer, and in this he is corroborated by several witnesses, most of whom, however, are members of his own family, but who have the appearance of being as fair and candid as the witnesses produced on behalf of рlaintiff and this, taken by itself, would no doubt have justified the circuit judge in finding, as he did, that the partnership agreement had not been sufficiently established.

If we consider the circumstances outside of the testimony of the parties we are left equally in doubt. It would seem rather singular that the defendant, who testified that he is a poоr man, with a family and practically without means, would have worked for two years and eight months for plaintiff upon an agreement for wages at three dollars a day and during that time have received less than $250 in actual money and only about $500 altogether. On the other hand, it appears from the testimony that this work wаs performed by defendant upon various *90farms leased by plaintiff from other parties, which leases all run in the name of plaintiff and concerning which therе is no evidence, outside of that of plaintiff, that defendant was ever consulted. It also appears that each party took the increasе of his own stock which was upon the places, with practically trifling exceptions, and that defendant paid for the shoeing of his own horses; that plaintiff рaid all the other bills in connection ‍‌​‌‌​​​‌​‌​‌‌‌‌‌​‌​​‌​​​​​‌​​​​​‌​‌​‌​‌​​​‌‌​​​‌‍with the purchase of machinery and the repair of machinery and the shoeing of horses; that there was no firm namе; that nothing in connection with the conduct of the farms was charged by anybody to defendant or to anyone else than plaintiff; and, as the weight of testimony seems to indicate, plaintiff’s conduct towards defendant was more that of an employer towards a hired man than that of a partner toward his coрartner.

A partnership primarily is a contract between two parties to carry on a business and to share its profits and losses and primarily indicates an equality of right and control between the parties. In these respects, however, the authority of one partner may be limited as between the partners so that one may have the general management of the business and the other be restrained within such limits as to its conduct as they may agree upon; аnd there may be a partnership wherein the parties, as between themselves, may not share equally in the losses of the business. If the other elements of a partnership are present such a partnership may exist that one partner, as between himself and his copartner, may participate in the profits and be immune from losses.

We do not attach much importance to the declarations of ignorant men, and both parties here may well be classed as such, that they are partners, because the real test is the legal effect of their agree*91ment and not what they may in their ignorance imagine its legal effect to be. We look in vain in any of the testimony for an intimation that the defendant “was to share ‍‌​‌‌​​​‌​‌​‌‌‌‌‌​‌​​‌​​​​​‌​​​​​‌​‌​‌​‌​​​‌‌​​​‌‍in the losses of the business and his participation in the management, as well as his legal title to the property, leases and machinery, which constitute its corpus, is entirely lacking, the legal title to the leasеs and the pieces of machinery being in the name of the plaintiff; and the testimony is overwhelming that the management was practically entirely in the hands of the plaintiff, the position of the defendant being that of a very skillful laborer who was sometimes consulted on small matters but generally occupying the status of what is vulgarly termed “a straw boss.” It appears that when the parties had arrived at a point where it was apparent that they could no longer do business together the plaintiff insisted that there should be a writing to indicate their real relation and requested the defendant to go with him to an attorney and have such a writing executed. The defendant declined to go, alleging the pressure of work as a reason, but prepared a writing, of which the following is a copy:

“This agreement is to show there ixists a pardner ship betwen H. F. Whetstone and A. D. Purdue in general farming and stock raising H. F. Whetstone manager and fianalsel backer All mоney and debts contracted shall be paid out of each and all crops until the same is all paid with interest then the blance of said money recieved from sale of crops shall be equily devided or invested in some manner
“All moneys collected and paid out shall be kept account ‍‌​‌‌​​​‌​‌​‌‌‌‌‌​‌​​‌​​​​​‌​​​​​‌​‌​‌​‌​​​‌‌​​​‌‍of and dеducted from the sale of said crops.
“All money furnished by H. F. Whetstone’s private funds shall be as an interest bearing note and *92shall be paid him as soon as the Co. funds can spare it.
“All stock shall be kept as near equal as possible.
“(Signed) A. D. Purdue.” °

The defendant says that this document was drawn with a view to a future partnership, but on its face it bears some indications of being intended to relate to the present condition of affairs betweеn himself and the plaintiff, although it would be unfair to require of him an exact use of proper grammatical moods and tenses. The dissensions that had then arisen between the parties would seem to preclude the idea that the writing was intended to provide for a future partnership. We are inclined to think that it exрressed defendant’s idea of what their relations had been, and while it may be some evidence of a partnership, its language would not constitute a technical partnership. It' is obvious that the contract drawn was not satisfactory to the plaintiff and was not accepted by him.

Without going into detail in regard to the testimony, which is quite voluminous and exceedingly contradictory, we are of the opinion that instead of a partnership the defendant was contracting with the plaintiff to work for him on these farms, taking as his compensation a share of the profits, a kind of contract not ‍‌​‌‌​​​‌​‌​‌‌‌‌‌​‌​​‌​​​​​‌​​​​​‌​‌​‌​‌​​​‌‌​​​‌‍unusual and seemingly consistent with thе actions of both parties. This would account for the defendant remaining in the business from year to year without receiving any agreed compensatiоn, as the expenses for himself and family were assured and there was always the hope that the next crop would show some profit.

We do not accept the defendant’s theory that he was hired at a wage of three dollars a day, which seems to the writer an afterthought, and which is *93not supported by any testimony outside that given by himself and members of his own family and inconsistent with his own conduct and the declarations made by him when he thought that taking a share of the profits of the business made him a partner, as he no doubt did.

This case is in some respects similar to the case of Hanthorn v. Quinn, 42 Or. 1 (69 Pac. 817), in which case the elements of partnership are so thoroughly considered that ‍‌​‌‌​​​‌​‌​‌‌‌‌‌​‌​​‌​​​​​‌​​​​​‌​‌​‌​‌​​​‌‌​​​‌‍it is unnecessary to citе the multitude of authorities upon that subject.

After thorough consideration of the evidence we are of the opinion that the lower court should be affirmed, except that defendant should recover his costs on this appeal. It is so ordered. Affirmed.

Bean, Brown and McCourt, JJ,. concur.