Dusopole v. Manos

Hammond, J. One of the questions was whether the money was lent to the defendant, or was paid to him for a share in a partnership which was to consist of the plaintiff, the defendant and the latter’s brother. As to the partnership phase.of the case, the judge instructed the jury in substance that if the plaintiff advanced the money for the purpose of becoming a partner and he became a full partner or became entitled to the rights of a partner in a share of the profits as repayment of the sum advanced, he could not recover although he was a minor. The judge still further instructed the jury as follows: “How it is for you to say from all that evidence whether between the time that he began to pay this amount of capital, as it is claimed here by the defendant, and the time when he made his last payment, in all amounting to three hundred and eighty-six dollars, whether it was intended and was agreed at that time that he was to become a full partner. Did he become a partner, or was this money simply advanced to the defendant in this case as a depositary until the full amount was paid, which was four hundred thirty-three dollars and thirty-three cents and one-third ? Was the service rendered in connection with the fact that he was working for the defendant as an individual? If you find that he was not a partner at that time, that this money was merely advanced as a part payment of the full amount of four hundred and thirty-three dollars and this defendant simply had control of that fund for the purpose of going into partnership, with that in view, this plaintiff, if he were a minor, would have a right to revoke that contract which would be executory, and until its full completion he would have a right to revoke the contract and recover what he had paid up to that time.” The defendant does not contest the correctness of the rules of law thus enumerated, but he contends that there is no evidence which would warrant a finding that the money was paid to the [359] defendant as a depositary in the manner stated in this part of the charge; that neither the plaintiff nor the defendant either in the testimony or in the arguments made any claim that it was; and hence that it was error to submit the case in this way to the jury. We have examined the testimony, however, and think that the view of the case suggested by the judge is warranted by the evidence; and that in view of all the circumstances the jury properly could find that the plaintiff never became a full partner and never was recognized as such, but that his membership of the firm depended upon his first paying in his full share of the capital, and that until that was done the defendant was a mere depositary of the money. It is immaterial that this possible view of the evidence had not been presented by the parties, and had not been suggested before the charge. .Exceptions overruled.