Wester v. Everett

Hill, J. (After stating the foregoing facts.) The question to be determined is whether the plaintiff has a joint interest or title in the property in controversy. It is insisted on the part of the defendant that Wester had no interest whatever in the sawmill and' its equipment; that he did not invest any money in the enterprise, and only contributed ten weeks work; that the contract was entire, [757] and not divisible; and that before he could obtain any fixed right in the property it was incumbent upon him to complete his contract, which was not done. We do not agree with the conclusions reached by the defendant, and by the trial court in dismissing the petition on demurrer. It will be seen from the foregoing statement of facts that Everett and Holland purchased the sawmill from Lattimore Brothers, who executed to them a bond for title, conditioned to convey the property to them upon payment of the purchase-price. Before the purchase-price was paid Wester and Everett entered into a Contract by which the plaintiff was to purchase the half interest in the property owned by Holland, and a payment of $200 was made by Wester, who obtained, the money from Everett. Thereupon Holland executed to Wester a bill of sale of a half interest in the property. It-thus appears that whatever interest Holland had in the sawmill was conveyed to Wester. Lattimore Brothers were to be paid by Everett and Wester out of the lumber sawed by them; and after the purchase-price should be paid, then Everett and Wester should share equally in the proceeds of the mill. The plaintiff insists that there existed between Wester and Everett a partnership, and that Everett kept possession of the partnership property arid refused to account to Wester for the property or .any of the proceeds thereof. On the other hand/it is denied that any partnership existed between them. It becomes material, therefore, to determine whether a partnership existed between Everett and Wester. Our Code of 1910, § 3158 declares: “A joint interest in the partnership property, or a joint interest in the profits and losses of the business, constitutes a partnership as to third persons. A common interest in profits alone does not. ” Bowley on Modern Law of Partnership, 19, § 25, .defines a partnership as “the relation existing between two or more individuals or associations of' individuals, who. have associated themselves together for the purpose of sharing the profits and losses arising from a use of capital, labor, or skill, in some common transaction or series of transactions.” In Camp v. Montgomery, 75 Ga. 795 it was held: “Where three parties owned and ran a sawmill jointly, on the agreement that one of them was to conduchthe operations of the mill, pay all its expenses from the proceeds, and divide the net profits equally between himself and the other two, the three jointly owning the property from which the income was derived, this constituted a part [758] nership between them.” And see Taylor v. Bliley, 86 Ga. 154 (12 S. E. 210); Huggins v. Huggins, 117 Ga. 151 (43 S. E. 759. Under the code section supra, and the decisions of this court, a joint interest in the profits alone will not suffice to constitute a partnership, but a joint interest in the partnership property will, or a joint interest in the partnership property and profits will. The allegation is that Wester paid $200 of the purchase-price for the mill property; and although he had borrowed this money from-his partner, Everett, it nevertheless shows such an interest in the partnership property as to constitute a partnership between Everett and Wester. Under the arrangement between Everett and Wester -they were to share in the profits after the purchase-price had been paid for the mill property. It seems to us that the elements of a partnership existed in this agreement, although no actual profits have been received directly by either of the parties. Each had an interest in the mill property. They had for ten weeks sawed lumber, a part of the proceeds of which had presumably been paid, under the agreement between the partners, .to Lattimore Brothers as a part of the purchase-price of the mill. We do not think that one partner, under such circumstances, could withhold from the other partner his right to one half of the property, or whatever profits there might be in the partnership. Under such circumstances, where one partner fails and refuses to account to his co-partner, and withholds the entire partnership property from him, a court of equity has jurisdiction of the case, and a receiver may be appointed to wind up the affairs of the partnership, pay off whatever indebtedness there exists against the partnership, have an accounting between the partners, and pay the profits, if any, to each partner entitled thereto. From what has been said it will be seen that the court below erred in dismissing the petition on demurrer. Judgment reversed. All the Justices concur.