Gottschalk v. Smith

Mr. Justice Carter delivered the opinion of the court:

Appellant and appellee agreed, each with the other, to obtain from one Hasberg, who owned one hundred and forty-seven acres of land in Cook county, a price for which he would sell the land, and that they would exert themselves, jointly and separately, to sell at an enhanced price and divide the difference or profit between them. Appellant, being better acquainted with Hasberg, undertook, at his own suggestion, to obtain Hasberg’s price and the desired option. Appellee took certain parties out to look at the land, and wrote appellant, enclosing certain clippings from newspapers, suggesting that the Illinois Central Railroad Company would probably want to purchase, but did not himself make any sale. Appellant negotiated a sale with the railroad company, took a conveyance of the property from Hasberg to himself at $120 per acre, and sold and conveyed it to the company for $150 per acre, realizing a profit of $4410, which he retained and refused to divide with appellee. Appellee then brought this action in assumpsit, for money had and received, for one-half of this amount. The case was tried by the court, without a jury, and judgment was rendered for appellee for the amount claimed. Appellant appealed to the Appellate Court, where the judgment was affirmed, and now prosecutes this appeal.

There are only two points relied on by appellant to reverse the judgments of the Appellate and circuit courts which appear to be of sufficient importance to be considered. These contentions are: First, that the transaction constituted a partnership between appellant and appellee, and that appellee cannot recover his half of the profits in an action at law; and second, that if they were not partners then no part of the moneys received by appellant belonged to appellee, and that he could recover, if at all, only by declaring specially on the contract of appellant to pay appellee one-half of the amount he should receive as profits, and that the evidence was not admissible under the common count for money had and received.

Appellant insists that the trial court should have sustained his motion to exclude the evidence, and should have held certain propositions of law submitted to the court, based on these two theories of his defense. We cannot concur in this view, and are unable to discover any merit in appellant’s defense. The transaction between the parties embraced only a single venture—that of the sale of a tract of land belonging to a third person. No losses or expenses were contemplated or involved. They simply agreed that they would-render services in the joint enterprise they were to undertake, viz., that of selling this piece of land, and that each should have one-half of the excess received over the price the owner agreed to take. This was not sufficient to constitute a partnership. (Hurley v. Walton, 63 Ill. 260 ; Fawcett v. Osborn, 32 id. 411; Adams v. Funk, 53 id. 219 ; Snell v. DeLand, 43 id. 323.) When the money was received by appellant one-half of it belonged to appellee, and nothing remained to be done to complete the transaction but for appellant to pay over to appellee. It was money appellant had received which in equity and good conscience belonged to appellee. The evidence was properly admitted under the count for money had and received. Taylor v. Taylor, 20 Ill. 650 ; Alderson v. Ennor, 45 id. 128 ; Belden v. Perkins, 78 id. 449.

No error was committed, and the judgment of the Appellate Court must be affirmed.

Judgmmt c#rmed