Smith v. Murphree

Partnership <&wkey; 122 — Existence of partnership held for jury. In action to recover 200 bushels of peanuts as one-half the toll taken for use of a peanut thrasher, evidence that plaintiff owned the thrasher and agreed with defendant to furnish it and keep it in repair, defendant to operate it, furnishing the labor therefor, each paying for half the oil and gasoline used, and the peanuts taken as toll to be divided equally, and that plaintiff did not contemplate a partnership, but intended his half of the toll peanuts to be rent for the use of the machine, did not make it appear that the parties should share losses equally, and hence there was not, as a matter of law, a partnership, which would prevent plaintiff’s maintaining the action. <®=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Circuit Court, Blount County; O. A. Steele, Judge. Action by H. O. Murphree against Jesse Smith in detinue and assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. The action was in detinue to recover 200 bushels of peanuts, and also in breach of contract to deliver the peanuts, or rather one-half taken as toll for the use of the machine. The charges refused to the defendant are as follows: The affirmative charges: “If you are reasonably satisfied, from the evidence in this case, that the parties to this suit made and entered into a contract in regard to said pea-threshing machine, by the terms of which plaintiff agreed to furnish said machine and keep it in repair, and defendant under said contract was to furnish the labor and operate said machine during the threshing season, and that both parties were to jointly furnish all the gasoline, oil, cylinder oil, and batteries necessary to run said machine during said season, and that they were to divide the toll peas equally between themselves, this constitutes a partnership in law, and the plaintiff cannot recover.” The parties were partners inter sese. 7 Ala. 569; 37 Ala. 201; 113 Ala. 447, 21 South. 459. In determining whether a partnership exist or was created, the intention of the parties is the question for' consideration. 147 Ala. 512, 40 South. 319. As to what is the true test see, 19 Ala. 774; 14 Ala. 303; 53 Ala. 205, 25 Am. Rep. 607; 180 Ala. 3, 60 South. 63.