Opinion
No. 17725
Opinion Filed October 4, 1927.
(Syllabus.)
Appeal and Error — Review — Sufficiency of Evidence in Equity Case.
The judgment of the trial court in an equity proceeding will not be set aside on appeal, unless said judgment is clearly against the weight of the evidence.
Error from District Court, Tulsa County; Luther James, Judge.
Action by Usher Carson against Homer S. Crossman, upon whose death the Exchange Trust Company, his administrator, was substituted. Judgment for defendant, and plaintiff appeals. Affirmed.
C. H. Rosenstein and R. E. Rosenstein, for plaintiff in error.
Preston C. West, Nathan A. Gibson, Roger S. Sherman, A. A. Davidson, and Joseph L. Hull, for defendant in error.
The parties hereto will be referred to as plaintiff and defendant, as they appeared in the trial court.
Plaintiff brought suit in the district court of Tulsa county alleging that plaintiff and Homer S. Crossman entered into a contract by the terms of which it was agreed that Crossman should furnish the money to buy certain lands located in Creek county, Okla., and that the same should be sold by the efforts of plaintiff and that from the sale price Crossman should be reimbursed for the purchase price and expenses connected therewith and that the residue should be equally divided between plaintiff and Crossman. It was further agreed between the parties that in case the $1,000 of the purchase price which had been advanced by Crossman should be forfeited, they should share the loss equally. Plaintiff alleged that this contract evidenced a partnership agreement between them, and prayed for an accounting.
After the issues were joined Crossman died and the Exchange Trust Company was appointed administrator of his estate and conducted the defense to plaintiff's action. The cause was tried to the court, and from a judgment in favor of defendant, plaintiff prosecutes this appeal.
When the cause was first called for trial objection was sustained to the introduction of evidence under the plaintiff's petition, apparently upon the grounds that the cause of action was barred by the statute of limitations, from which ruling appeal was taken to this court and the judgment of the trial court reversed (Carson v. Crossman, 99 Okla. 71, 225 P. 947), and it is upon the question there decided that plaintiff seems to base his claim for recovery here. An examination of that opinion, however, shows that the sole question there decided was that plaintiff's petition was good as against a general demurrer, treating the objection to the introduction of the evidence as a demurrer, together with the incidental question that the statute of limitation does not begin to run against a right by one partner to sue another for an accounting until the partnership affairs have been entirely closed. This opinion does not purport to adjudicate the question that the contract forming the basis of this lawsuit constituted a partnership agreement, but merely holds that the petition sufficiently alleged a partnership agreement to justify the introduction of evidence thereof.
The record shows that it was conceded that the lands in question had been sold, and the only evidence offered at the trial of the instant case in support of plaintiff's allegations was his testimony that the contract had been entered into, and the contract itself was admitted in evidence.
The defendant offered the testimony of but one witness, Charles Richardson, who testified that he was present when Crossman delivered to plaintiff the following letter:
"Tulsa, Oklahoma,
"November 18, 1912.
"Mr. Usher Carson.
"Tulsa, Oklahoma.
"Dear Sir:
"You are hereby notified that I do not now desire to sell the lands covered by our contract of January 25, 1910, and any authority that you might have had under said contract to sell said lands is hereby revoked.
"(Signed) Homer S. Crossman."
It is one of the contentions of defendant that no partnership existed between plaintiff and Crossman, but that they had a contract authorizing plaintiff to sell the real estate in question and his compensation for his services should be measured by an amount equal to half the profits accruing from the transaction, and that if no partnership agreement existed between them the present action was barred by the statute of limitation, the petition not having been filed until April 25, 1918; in other words, when Crossman delivered to plaintiff the letter introduced in evidence on November 18, 1912, that whatever cause of action plaintiff may have had then arose.
We find no fault with the authorities cited by counsel and this court's holding in the former appeal of this case that the statute of limitation does not begin to run against a partner until the partnership affairs have been closed, but the question as to whether a partnership existed was, under the state of the record in this case, a question for the court to determine, and we are at a loss to see how the trial court could have arrived at any other conclusion than the one reached.
In Cecil v. Montgomery, 95 Okla. 184, 218 P. 311, where four persons agreed to share equally the profits of a joint venture involving a single transaction, this court held that one of the parties might maintain his action against another who appropriated the entire profits without making the other two parties to the action thereby holding, at least by implication, that such an agreement did not constitute a partnership.
In Jaques v. Hulit, 16 N.J.L. 38, it was agreed that in consideration of a certain sum of money to be paid by defendants to plaintiffs, defendants should have one-half of the peaches then growing in a certain orchard of plaintiff, and that all the peaches should be marketed together for the benefit of the parties, each party to be at one-half the expense and receive one-half of the benefits accruing thereon. The court there held that if it could be said a partnership existed at all, it was for a special and limited purpose and terminated as soon as the peaches had been marketed. To the same effect was the holding in Burleigh v. Bevin, 48 N.Y. S. 120, when the court said:
"There was no general 'partnership', in the sense in which that word is usually understood. The agreement was simply to share the profits and bear the losses of a single transaction. There were not and could not be any joint debts or mutual accounts to be adjusted. After the sale of the stock nothing remained to be done except to divide the profits or contribute to the losses. * * *"
In the instant case the judgment of the court was general in its nature in behalf of the defendant, and in the light of the foregoing authorities we indulge the presumption, although it is not specifically stated in the record, that the trial court reached the conclusion that no general partnership existed and that the suit, therefore, was not maintainable as a suit for an accounting between partners and for the settlement of mutual accounts, and if it were possible to say that the suit was maintainable upon the theory that Crossman was indebted to the plaintiff for one-half the profits of the sale, it would be incumbent upon him to show that the property was sold at a profit, and on that subject there is not one word of testimony in the record and, under the holding of this court in Lamb v. Palmer, 79 Okla. 68, 191 P. 184, Stone v. Spencer, 79 Okla. 85, 191 P. 197, and Wooten v. Lackey, 79 Okla. 141, 191 P. 1037, the judgment of the district court must be affirmed.
BRANSON, C. J., MASON, V. C. J., and LESTER, HUNT, CLARK, and HEFNER, JJ., concur.