, In re Hassiepen, 269 Ill.App.3d 559, 207 Ill.Dec. 261, 646 N.E.2d 1348, 1353 (1995); Hofer v. St. Clair, 298 S.C. 503, 381 S.E.2d 736, 739 (1989).See, e.g., Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308, 312 (1995); Widdoss v. Donahue, 331 N.W.2d 831, 833 (S.D. 1983); accord In re Hassiepen, 207 Ill.Dec. 261, 646 N.E.2d at 1353 (factfinder's determination can be vacated only if contrary to "the manifest weight of the evidence").See Boeckmann, 909 S.W.2d at 312; In re Hassiepen, 207 Ill.Dec. 261, 646 N.E.2d at 1353; Tralmer Sales Serv., Inc. v. Erickson, 186 Wis.2d 549, 521 N.W.2d 182, 187 (App. 1994).
The issue of whether or not a partnership existed is a question of fact. See Widdoss v. Donahue, 331 N.W.2d 831,833 (S.D. 1983). Indeed, "[s]ince there is no arbitrary test for determining the existence of a partnership, each case must be governed by its own peculiar facts and the existence of the relationship is a question for the trier of fact except in a case where the evidence is conclusive."
S.D.C.L. §§ 48-1-4, -5, -6, -7, and -8. Under North Dakota law in 1994, these provisions were essentially the same. N.D. Cent. Code §§ 45-05-05 and -06. The South Dakota Supreme Court has further stated, There is no arbitrary test for determining the existence of a partnership; therefore, each case is governed by its individual facts and the existence of the relationship is a question for the trier of fact, except when the evidence is conclusive. Widdoss v. Donahue, 331 N.W.2d 831 (S.D. 1983); Munce v. Munce, 77 S.D. 594, 96 N.W.2d 661 (1959). The existence and scope of a partnership may be evidenced by a written or an oral agreement, or implied by conduct of the parties.
(e) Except as otherwise provided in subsections (a) and (b), persons who are not partners as to each other are not liable as partners to other persons. [¶ 20.] The existence of a partnership is an issue of fact. Widdoss v. Donahue, 331 N.W.2d 831, 833 (S.D. 1983) (citing Weidner v. Lineback, 82 S.D. 8, 140 N.W.2d 597 (1966); Munce v. Munce, 77 S.D. 594, 96 N.W.2d 661 (1959)). "Since there is no arbitrary test for determining the existence of a partnership, each case must be governed by its own peculiar facts and the existence of the relationship is a question for the trier of fact except in a case where the evidence is conclusive."
Based on counsel's misstatement, which Robbins labeled "unreasonable acts," Robbins moved to recover his costs incurred in taking this deposition. See Wildoss v. Donahue, 331 N.W.2d 831, 834 (S.D. 1983). The trial court denied the motion.
Thus the trial court was never squarely presented with the issue of whether JWC and NPT were joint venturers. Nevertheless, we hold that this issue must be resolved, because the merits of Laufer's quantum meruit claim depend on its resolution. If there was a joint venture, then Laufer was not entitled to quantum meruit damages. If a joint venture never came into existence, then Laufer may be able to recover in quantum meruit, but only if he presents more proof of the value of his services than he has offered so far. The existence vel non of a joint venture is a factual issue properly reserved for the trial court as trier of fact; we may not decide it for the first time on appeal. See, e.g., Bank of California v. Connolly, 36 Cal.App.3d 350, 364, 111 Cal.Rptr. 468, 478 (1973); Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 218, 553 P.2d 733, 737 (1976); see also Tartaro v. La Conte, 157 Conn. 583, 584, 254 A.2d 912, 913 (1969); Widdoss v. Donahue, 331 N.W.2d 831, 833 (S.D. 1983); Fuller v. Fuller, 518 S.W.2d 250, 251 (Tex.Civ.App. 1974). We must therefore remand the case to the trial court for it to make the necessary finding.
A partnership is an association of two or more persons who carry on a business as co-owners. Fredrickson v. Kluever, 82 S.D. 579, 152 N.W.2d 346 (1967). There is no arbitrary test for determining the existence of a partnership; therefore, each case is governed by its individual facts and the existence of the relationship is a question for the trier of fact, except when the evidence is conclusive. Widdoss v. Donahue, 331 N.W.2d 831 (S.D. 1983); Munce v. Munce, 77 S.D. 594, 96 N.W.2d 661 (1959). The existence and scope of a partnership may be evidenced by a written or an oral agreement, or implied by conduct of the parties.