Opinion
No. 47/466.
10-24-1921
FRANK v. FRANK.
Aaron A. Melniker, of Jersey City, for complainant. Dembe & Dembe, of Bayonne, for defendant.
Suit to declare a partnership and an accounting by Moe Frank against Louis Frank. Decree of dismissal.
Aaron A. Melniker, of Jersey City, for complainant.
Dembe & Dembe, of Bayonne, for defendant.
GRIFFIN, V. C. The purpose of this suit is to declare the existence of a partnership between two brothers, Moe and Louis Frank, masons and plasterers, and for an accounting, and to have it declared that certain lands in the city of Bayonne, mentioned in the bill, standing in the name of Louis, are partnership property, or that a resulting trust exists therein in favor of Moe.
In 1910 Moe was 19 years of age, and, as I recall it, Louis was not quite 21. They were engaged in the plastering business. Moe says that he did the plastering work, and Louis was the master, without a union card, while he (Moe) had one; that Louis, in order to work, was required to have a union card. This statement is somewhat negatived from the fact that Louis in 1914 did work as a journeyman and had permits which cost $5 apiece to work for a period. However, Moe says, he received no wages; that all he received was a couple of dollars a week, and occasionally his clothes, and the money was turned in to his mother for the support of the family, consisting of the father and mother and eleven children, only two of whom were working, namely Moe and Louis. It appears that the father worked very little. Moe also says that the surplus over and above the sum turned in to the mother was to be put in bank in the joint account. The fact is that no moneys in the nature of wages were paid by Louis to Moe from 1910 until around 1914, when Moe became engaged in marriage, and he was then paid his regular weekly wages, out of which he paid his board to his mother. From 1910 to 1914 or 1915 Moe worked for others than his brother, and the brother himself engaged as a journeymanon his own account. The building business was not very active, and employment was not readily obtainable.
The only circumstance, to my mind, which tends to support the theory of Moe as to the partnership is the fact that he was not paid regular wages, such as an employer would pay a journeyman. But it must be borne in mind that Moe was a younger brother (Louis Icing about a year and a half to two years his senior), and that it was a family agreement wherein Louis says he turned in to his mother Moe's money, after paying him $2 or $3 for spending money and buying him clothes. While, as a matter of fact, Louis does not really know how much he turned in, I take it that in all probability, he turned in a sum equivalent or almost equivalent to Moe's earnings, and, in addition to this, turned in a very large portion of his profits and earnings, without undertaking to keep an account of the sums so turned in on the account of either. That there could not have been much saved is apparent from the fact that there were thirteen mouths to feed out of the earnings of these two sons, and work was not at all times plentiful.
In 1910 or 1911 the two lots mentioned in the bill were bought for $1,550. These were bought by Louis and one Koenigsberg, who says that he understood that Louis had bought one half for himself and Moe, and that he (Koenigsberg) bought the other half for himself and his brother, who was his partner, and that for convenience the property was taken in the joint names of himself and Louis, because Moe was then under 21 years of age. The purchase price was paid fey giving a mortgage for $1,000, and cash $275 paid by Louis, and $275 in cash and notes paid by Koenigsberg. Subsequently, in 1911, or about a year after the purchase, Louis wanted to build, and his co-owner did not care to do so, and Louis bought his interest out by giving him the sum he had paid, plus $75 as profit. This purchase price was paid partly in cash, and the balance in notes payable $25 a month.
The building was undertaken, which, according to the figures, cost about $9,000 or thereabouts. When completed, a $7,000 first mortgage was put upon it, and a $1,500 second mortgage, which two mortgages practically represented the entire cost of the two buildings, which were two six-family houses. Moe worked on this property, but was not directly paid wages, his earnings being turned in to his mother, as above stated, for the support of the family.
There was also work done on a building of a carpenter or plumber by both Moe and Louis, the proceeds of which were credited on a bill against Louis, and the balance paid to carpenter or the plumber. Thus Moe, to the extent of what became due to him on this outside work, contributed towards the cost of Louis' building.
There is some evidence that Louis had made statements that Moe was a partner, and that he would give Moe his share when the buildings were sold. This testimony, after a lapse of several years, is rather vague, and hardly rises to the dignity of proof, when it is considered that Louis entered into possession of the property, handled it as his own, ran all the risks, made all the mortgages, raised all the money to carry the property, during a portion of which time it was not a paying proposition, that he continued to be the owner, without apparently any demand or claim being asserted against him until this bill was filed, or shortly before, and that, even after Louis was inducted into the army and gave a power of attorney to another brother to collect the rents, Moe, with knowledge of this fact, did not assert his rights as a partner, or claim that he was entitled to take charge of the premises. All these things indicate, to a great extent, that Moe did not understand that be was a partner, or that he had any interest in the premises, and probably would not now assert it were it not for the fact that in June, 1919, he and Louis became estranged and have not spoken since.
The conclusion I have reached is that the proof offered is insufficient to establish either the existence of a partnership between the brothers, or a resulting trust in favor of the complainant in the premises in question.
I will advise a decree dismissing the bill.