Opinion
(December Term, 1859.)
A partner in a firm for the transaction of business is not entitled to charge for his personal services unless there be a contract entitling him to receive compensation.
CAUSE removed from the Court of Equity of FORSYTH.
Fowle and McLean for plaintiffs.
Morehead for defendant.
Under certain articles in writing entered into between them, the plaintiffs and the defendant purchased of one Shultz two thirds, and from the clerk and master of Forsyth the other third, of a tract of land lying in the county of Obian, Tennessee, for about $3,760, and resold it for a considerable profit. The defendant negotiated the contract for the land with Shultz, and resold it in Tennessee, which occasioned him to make a trip to Nashville, in that State. He gave his bonds with the plaintiffs as surety for the purchase money when they bought, and he took bonds and made a bond for title on the resale in Tennessee. He collected the money in Tennessee (about $10,000) and used it in paying for their purchase, and he has accounted and paid to the plaintiffs all their share of the sums received, except the sum of about $500, which he claims on the ground that he had been at great trouble and pains in managing the business. The plaintiffs objected to the sum demanded, but one of them said to a witness that he was willing to compensate Lemly liberally for the trouble he had had in the business. The prayer is for an account. The answer admits the facts as stated, but insists that he is fully entitled to the sum claimed for compensation. It is not insisted that there was at any time any agreement to allow (149) the defendant compensation. Cause heard on the bill, answer, and proofs.
The only question presented on the record which it is necessary for us to decide is whether the defendant is entitled to compensation for buying and selling the land mentioned in the pleadings and for receiving and paying over the price to the parties entitled thereto. It clearly appears from the pleadings and proofs that there was no agreement between the parties prior to the performance of the services, for which the defendant claims compensation, that he was to receive it. Such being the case, the law is well settled that he is not entitled to it. The parties were partners in the buying and selling of land, and there was no evidence that the plaintiff was appointed a special agent to manage the business, in which capacity only he could have claimed a salary or wages beyond his necessary expenses and disbursements in relation to it. Buford v. McNeely, 17 N.C. 486; Phillips v. Turner, 22 N.C. 125; Anderson v. Taylor, 37 N.C. 420; Collier Part., sec. 183. The case is not varied by what was said by one of the plaintiffs to the witness, Mr. Lash, when the services were about being closed: that he was willing to compensate the defendant liberally. If the expression of such willingness to make compensation can be construed into a promise at all, it was not made to the defendant, it did not purport to be an agreement between all the partners; and if these objections were out of the way, it could, at most, be considered only as a promise on a past consideration, and, therefore, not binding. Steph. N. Pri., 243; Smith Contracts, 56; Law Lib., 117.
The counsel for the defendant, aware of the difficulty of supporting his claim if the parties were to be considered as partners, has attempted to support it on the ground that the defendant was to be regarded as a trustee in the transaction, and, as such, was entitled to a (150) reasonable compensation for his services. We are at a loss to discover how the present defendant can be viewed in the light of a trustee any more than any person who engages with others, either in a speculation or a regular business, can be viewed in that light. It is a mere change of name without any change of character; and a court of equity will not permit one of its best established rules to be thus violated by so simple a stratagem. The agreement of the parties was, in substance, that they should purchase and sell for their joint benefit a certain tract of land, which made them partners in the transaction, no matter in whose name the purchase was to be made and the details of the business carried on. Such being the case, neither of the parties can charge the others for his services in conducting the business unless there was an agreement for compensation. The defendant is, as we have said before, entitled to have his necessary expenses and disbursements paid by the firm, and for the ascertainment of the amount thereof there must be an account.
PER CURIAM. Decreed accordingly.