Rothrock v. . Naylor

WiNBORNE, J. This is the determinative question on this appeal: Is the evidence offered by plaintiff taken in the light most favorable to him, as we must do in considering a motion for judgment as in case of nonsuit, sufficient to take the case to the jury upon an issue as to the existence of a partnership between Bonin Realty Company and, defendant E. F. Strickland in respect to the construction of the houses and sale of the houses and lots on which the houses were constructed ? Careful consideration of the evidence leads to the conclusion that the court below properly ruled in the negative. “To make a partnership, two or more persons should combine their ‘property, effects, labor, or skill’ in a common business or venture, and under an agreement to share the profits and losses in equal or specified proportions, and constituting each member an agent of the others in matters appertaining to the partnership and within the scope of its business.” This is definition given in opinion by Ilohe, J., in case of Gorham v. Cotton, 174 N. C., 727, 94 S. E., 450, as containing the *787 substantive features of definitions of the term as approved and applied in numerous cases in this State, as in Fertilizer Co. v. Reams, 105 N. C., 283, 11 S. E., 467, and Mauney v. Coit, 86 N. C., 464. However, the principle is well established in this State that “while an agreement to share profits, as such, is one of the tests of a partnership, an agreement to receive part of the profits for his services and attention, as a 'means only of ascertaining the compensation, does not create a partnership.” Kootz v. Tuvian, 118 N. C., 393, 24 S. E., 776. See also Mauney v. Goit, supra; Fertilizer Co. v. Reams, 105 N. C., 283, 11 S. E., 467; Lance v. Butler, 135 N. C., 419, 47 S. E., 488; Trust Co. v. Ins. Co., 173 N. C., 558, 92 S. E., 706; Gurganus v. Mfg. Co., 189 N. C., 202, 126 S. E., 423; Wilkinson v. Coppersmith, 218 N. C., 173, 10 S. E. (2d), 670. Moreover, “when the facts are undisputed, what constitutes a partnership is a question of law . . .” Webb v. Hicks, 123 N. C., 244, 31 S. E., 479; Bolch v. Shuford, 195 N. C., 660, 143 S. E., 218. In the light of these principles the written agreements between E. E. Strickland, the owner, and Bonin Eealty Company, the contractor, fail to reveal the elements essential to constitute a partnership. Eather, it is manifest that in substance and in form these agreements create the relationship of owner and independent contractor. The Eealty Company agreed to furnish all the materials and to perform all the labor for the construction of the several houses in accordance with plans and specifications which in each instance are made a part of the agreement, and, in any event, it is to receive therefor from Strickland, the owner, a specified sum of money — the owner agreeing to make partial payments orí the contract price at certain stages of the construction. The provisions for payment on contract as the work progressed are such as are found in building contracts, and are wholly consistent with independent relationship between the parties. But out of the provisions relating to the sale of the houses and lots after the houses shall have been constructed, it is contended that there is profit sharing from which the jury may find a partnership arrangement existed. It is apparent, however, that any increased amount the Eealty Company would receive and did receive over and above the fixed stipulated sum for constructing 'the houses was by way of compensation for selling the houses and lots. If in each instance the house and lot had not been sold within four months the Eealty Company would have recéived from Strickland, the owner, the fixed stipulated sum for constructing the house. And in this connection if the Eealty Company made a profit in constructing the house there is no provision for the owner to share it, nor is there any provision by which the owner is to bear any loss the Eealty Company might have sustained. *788 Moreover, there is no provision by which the Realty Company would share in any profit the owner might make in any sale made by the owner if the house and lot had not been sold within four months, or by which it would bear any loss the owner might sustain in such sale. Furthermore, while the plaintiff offered evidence tending to show the value of the lots before the houses were built on them, there is no evidence as to what the owner paid for them. But if the owner realized a profit from the sale of the lots there is no provision for the Realty Company to share it. The owner agreed to limit his interest in thé sales price to $975 for the lot. This he received, plus the return of the money advanced on the contract price. It is therefore manifest that independent relationship permeated all phases of the transactions. And as the facts are undisputed, the evidence presents a question of law for the court. It is contended, however, that the excluded testimony tends to show an admission by silence of a partnership arrangement between the Realty Company and Strickland. With this we are unable to agree. The excluded testimony is not inconsistent with the terms of the written agreement between the parties introduced in evidence by the plaintiff. But granting that the building of the houses and the sale of the houses and lots were speculative ventures, the contract fails to show that a partnership existed. The judgment below is Affirmed.