Blaisdell v. Burns

OPINION OF THE COURT BY PERRY, J. (Galbraith, J., dissenting.) This is a suit in equity wherein the main averments of the bill are: “that sometime during the month of September, 1898, "to wit, on September 1st, 1898, the petitioner and respondent hy oral agreement entered into a partnership under the térms of which they -became equal partners in the business of soliciting life insurance on the Island of Oahu, Hawaiian Islands, and were to participate share and share alike in all losses and profits of the same; that said partnership continued and existed up to, to wit, the 19th day of December, 1898, when by mutual consent said partnership was terminated”; and that no accounting •of said partnership business has been had. The prayer is that respondent be required to submit to an accounting of said partnership matters and for such other relief as may be proper. The respondent denies the existence of the partnership as alleged. The court below, after trial on the merits, was of the [508] opinion that the evidence on the issue of whether or not the alleged partnership had been entered into was evenly balanced and that the complainant had not successfully borne the burden of proving his averments by a preponderance of the evidence, and for that reason dismissed the bill. From that decree the complainant appeals to this Court. The issue is one of fact. The complainant testifies positively that some time in the early part of September, 1898, the respondent and himself orally agreed to work together as partners in the business of soliciting life insurance, sharing equally in all the expenditures made and in all the commissions received for policies issued in consequence of their joint and their several efforts, and that this agreement continued in force, with an exception to be hereinafter referred to, until December 19, 1898, when it was terminated by mutual consent. On the other hand, the respondent testifies positively that during the period named no such agreement was entered into' by or between the parties and that the only understanding between them at that time was that for such insurance business as the complainant might obtain or assist in obtaining he was to receive as compensation a certain portion of the commissions. There is an irreconcilable conflict in the testimony of these two witnesses on this essential point. "We believe the testimony of the complainant, that the agreement of partnership- was entered into by the parties. Aside from the testimony of the parties themselves, but little evidence was adduced tending to- throw light on the main issue; and yet the complainant’s statement is not without corroboration in the acts of the parties or from the testimony of disinterested witnesses. To the witness May, a local agent of the Germania Life Insurance Oo. with whom the respondent placed some insurance business, the respondent stated, in September or October of 1898, that Blaisdell and himself had been “writing business together” in the Manhattan Insurance Co. and that they wished to place some business in the Germania, and, in December, 1898, that he was going to California and that the arrangement between Blaisdell and himself ceased from that day, and that any business that [509] was turned in by Blaisdell would be his individual business. May further testifies that the expression, “writing business together,” as used by insurance men, imports a partnership1, and Bums’ statements to May, just above mentioned, shows that he, Bums, used the expression in that sense. Kinney, Ballou & MeOlanahan for complainant. Magoon & Thompson for respondent. Kespondent accepted a share of the commissions in at least two cases where the insurance was effected solely through Blaisdell’s efforts. Again, during the period in question Bums made a trip to Kauai to solicit insurance. Blaidell being unable to accompany him, it was specially agreed between the two that the returns received from such business as Bums might secure would be for the latter alone and would not be shared in by Blaisdell. No sueh special agreement was necessary unless there was a general agreement to the contrary. No finding having been made by the court below as to the state of the account between the parties, we prefer to make none now in the first instance. The decree appealed from is reversed and the case remanded to the Circuit Judge of the Ernst Circuit for such further proceedings as may be proper, not inconsistent with the foregoing views.