55 167 JOHN H. KERRICK V. WILLIAM H. STEVENS, ALGERNON S. 58 297 RICHES AND GEO. W. MCCORMICK. Partnership whether present or future. A partnership agreement which contemplates action to be taken at once Error to Montcalm. (V. H. Smith, J.) Oct. 14.-Oct. 22. N. O. Griswold for appellant. Reversed. T. R. Shields and J. C. Shields for appellee Stevens. CAMPBELL, J. Defendants were sued as partners for a debt incurred by the firm for machinery furnished by plaintiff for a factory in Hastings, Minnesota. Under the charge. of the court below a verdict was rendered for defendants, which depended on a denial of the existence of any partnership liability against Stevens. On the 1st of March, 1882, the defendants entered into articles which recited the ownership by Riches of a patent for folding ladders, in which he agreed to give the others each one-third interest in Minnesota. Stevens agreed to furnish $5000 for the. purpose of putting up a factory in Hastings, and buying machinery and material, and was not to do any work in the factory unless he chose. Riches was to assist in putting up and setting in order the factory and machinery, and McCormick to attend to sales and manufacture. When the factory was completed they were all to be equal partners. As soon as this was signed the parties began operations, and bought machinery and property for the purpose of the manufacture, and Riches moved to Hastings from Michigan for that object. In the latter part of May or early in June Stevens went there and spent some weeks, as it is claimed, in looking after the business. He did not furnish the full amount which he agreed to. The notes in suit were given. for machinery purchased for the business and put up in the factory, which was nearly ready for use. There was testimony that during his visit at Hastings Stevens was introduced as a partner, said he was a partner, and acted as a partner, going twice with one of the witnesses to St. Paul to purchase property which was in Hastings, as a site for the factory, and requested the same witness to keep an eye on the operations of the other partners and report to him. In October, 1882, being written to on behalf of plaintiff for payment of this claim, he wrote back a letter treating the matter as a liability of the partnership, urging plaintiff to take back the machinery, and promising to arrange the balance satisfactorily. Evidence was also given that Stevens, on the 31st day of July, 1882, sent out various notices that he would not be liable for any future debts. Defendant was allowed to introduce some talk after the contract was executed, to the effect that the partnership was not to commence until after the factory was finished. But it was not claimed that this was for the purpose of changing the agreement, but only to construe it; and Mrs. Stevens. spoke of this as being said both before and after, on the same day. There are several questions raised on the charges, but one is sufficient to decide the case. The court charged that the written contract did not make the parties partners, but only provided for a future partnership after the factory should be put in operation. We think it created a partnership from the beginning. It contemplated action to be taken at once and continuously for the joint benefit. Stevens was to furnish the money in advance, and Riches was to give his time and attention to putting up the factory and machinery. These were the capital of the firm to enable it to get into prosperous operation. It would be an anomaly to have capital paid in and expended, without any partnership existing, and without any provision for future emergencies or failures. The purpose must be derived from the nature of the agreement, and not from the technical meaning of words as present or future, standing alone. It was quite proper to use future words as to the interest to be owned in future property, but this will not do away with the necessary inference to be drawn from the immediate action of parties and expenditure of time and money in such a way as to be practically lost in case of there being no partnership carried out. We think the partnership began at once. The judgment must be reversed and a new trial granted. The other Justices concurred. JOHN STANCER V. HIRAM ROE. Judgment for possession does not necessarily carry crops. A judgment against a tenant for possession, in proceedings before a circuit court commissioner, does not necessarily divest him of his right, under the terms of the lease, to his share of the crops; and if the judgment is not based on a forfeiture he is at least entitled to his proportion of crops already harvested. Error to Calhoun. (Hooker, J.) Oct. 14.-Oct. 22. TROVER. Plaintiff brings error. Clapp & Reynolds for appellant. Reversed. Edwards & Stewart for appellee. Forfeiture of a lease makes a crop on the land part of the realty: Carpenter v. Jones 63 Ill. 517; 1 Washburne on Real Property (1st ed.) 3; crops belong to the landlord on re-entry upon forfeiture by the tenant: Taylor's L. & T. § 535; Nye v. Patterson 35 Mich. 413; Chandler v. Thurston 10 Pick. 205; King v. Fowler 14 Pick. 238; Dayton v. Vandoozer 39 Mich. 749. COOLEY, C. J. On December 24, 1880, the defendant leased to the plaintiff a farm in the county of Kalamazoo "for the term of two years with the privilege of three years if both parties are suited;" defendant "to furnish half the seed that may be needed on said farm for the time above stated," and the plaintiff to work the farm in a good, workmanlike manner, and deliver to the defendant half the crops -grain in the half bushel and hay in the stack or barn. There were no other special provisions in the lease. On August 26, 1881, defendant took proceedings before a circuit court commissioner to recover possession of the farm. His complaint was general, and merely alleged that plaintiff held possession wrongfully, and against his right. On September 8, 1881, judgment was given for complainant in that proceeding, and possession was surrendered to him. At the time of so obtaining possession there were upon the land crops of hay, clover seed, corn and potatoes which had been raised by the plaintiff, a part of which was ready for harvest, and some of which was actually harvested. Defendant claimed that plaintiff had lost by the judgment all right in the crops, and refused to permit him to take away any part of them. Plaintiff brought this suit to recover the value of the share he was to have under the lease, but the circuit court sustained the position taken by defendant, and directed a verdict in his favor. The circuit judge appears to have been of opinion that the judgment which defendant obtained for possession of the farm conclusively determined that plaintiff had forfeited all rights under the lease, not only to possession of the land but to any crops which had been raised. We do not understand how this can be. The judgment of the commissioner determined that at the time of the commencement of the proceedings the defendant in this suit was entitled to the possession of the farm, and that plaintiff held wrongfully as against him; but upon what ground the judgment was given we are not informed, and we cannot assume that it was on the ground of forfeiture. It may, for anything we know, have been based upon some contract or understanding of the parties entered into subsequent to the lease, and it could not well have been for any forfeiture of the lease, for no clause of forfeiture is contained in it. Upon all the facts appearing in this case, the plaintiff was entitled at least to his share of the crops, so far as they had been harvested. Whether he was entitled to more, we could not now undertake to say, because the case has not been so tried as to bring out all the facts. The judgment must be reversed and a new trial ordered. JOHN D. MCCALL V. ALFRED WELLS AND ELEANOR WELLS. Adverse title. Where notwithstanding a deed to one person another went into exclusive possession and exercised acts of ownership, and such possession was recognized by all mesne grantees of the first, the occupant's adverse title is a question for the jury in an action of ejectment against him by one claiming under the deed. Error to Jackson. (Gridley, J.) Oct. 14.—Oct. 22. EJECTMENT. Defendants bring error. Reversed. Grove H. Wolcott for appellants. Whether possession is adverse is a question for the jury: McPherson v. Featherstone 37 Wis. 632; continued possession by a grantor long after the execution of his deed to another may as between himself and his grantee raise a presumption that he has retained or acquired some right to the land: Bennett v. Robinson 27 Mich. 26. Gibson & Parkinson for appellee. CHAMPLIN, J. Plaintiff brought ejectment against defendants to recover a piece of land containing about eight acres. Previous to 1867 William Coak was the owner of one hundred and thirty acres of land which included the land in question. He died in 1858 leaving the defendant Eleanor 55 171 122 |
