Paul v. Cullum - 132 U.S. 539 (1889)
U.S. Supreme Court
Paul v. Cullum, 132 U.S. 539 (1889)
Paul v. Cullum
Argued November 13-14, 1889
Decided December 16, 1889
132 U.S. 539
In the absence of written stipulations or other evidence showing a different intention, partners will be held to share equally both profits and losses but it is competent for them to determine as between themselves the basis upon which profits shall be divided and losses borne, without regard to their respective contributions, whether of money, labor, or experience to the common stock.
L. and W., the owners of a stock of goods, made a written agreement with H. reciting that the latter was "taken into partnership," that the stock should be inventoried and delivered to H. "as a capital stock . . . to be sold with his entire direction and supervision under the name" of the L. and W. Company; that a new set of books should be opened showing the business of the new firm; that the profits and losses should be shared in the proportion of eight-tenths for L. and W. and of two-tenths for H.; and that the "partnership" should pertain only to merchandising, and have no connection with any outside business L. and W. might have jointly or separately. After this agreement was made, L. constituted H. his attorney in fact with power
"to bargain, and agree for, buy, sell, mortgage, hypothecate, and in any and every way and manner deal in and with goods, wares, and merchandise, choses in action, and other property in possession, or in action, and to make, do and transact all and every kind of business of what nature and kind soever, and also, for me and in my name, and as my act and deed, to sign, seal, execute, deliver and acknowledge such deeds, covenants, indentures, agreements, mortgages, hypothecations, bottomries, charter parties, bills of lading, bills, bonds, notes, receipts, evidences of debt, releases, and satisfactions of mortgage, judgment, and other debts, and such other instruments in writing of whatever kind and nature as may be necessary or proper in the premises."
(1) That by this agreement, L., W., and H. became partners and as between themselves established a community of property as well as of profits and losses in respect to said goods and the business of the L. and W. Company.
(2) That in the absence of L., this power of attorney authorized H. to represent him in a general assignment of the property of the L. and W. Company for the benefit of its creditors.
Replevin to recover possession of goods of the value of $35,000, taken by the defendant Paul from
on Congress Street in Tucson, Arizona, . . . formerly occupied by Messrs. Lord & Williams Company . . . or for the sum of thirty-five thousand dollars, the value thereof, in case delivery cannot be had."
The defendant demurred, and also answered with a general denial, and further pleaded that the seizure of the property in dispute was made by him as the "duly elected, qualified and acting Sheriff of the County of Pima, Arizona Territory," under a writ of attachment duly issued in a case in which one Thompson was plaintiff, and Lord and Williams were defendants,
"by virtue of which he levied upon and took possession of the goods, wares and merchandise mentioned in the complaint herein as the property of said defendants, Lord and Williams, in whose possession it was and to whom it belonged, and held the same as said sheriff, and by virtue of said writ at the time of the commencement of this action."
The cause was tried by the court without a jury, and resulted in a finding of facts which is set forth in the opinion of the court, post, 132 U. S. 545. The power of attorney referred to in the first of those findings is printed in the margin. * The agreement
between Lord, Williams and Harlow by which they formed the co-partnership of the Lord & Williams Company referred to in Finding I will be found in the opinion of the Court, post, 132 U. S. 547.
The court found as conclusions of law on its findings of fact:
"I. That the property in the complaint mentioned and described was wrongfully taken and detained by the defendant from the possession of the plaintiff."
"II. That the plaintiff is entitled to a judgment for the return of said property, and if the same cannot be made, for the sum of $35,000 against the defendant."
And thereupon the following judgment was entered:
"The court having this day signed and filed its findings of fact and conclusions of law in this case, and the value of the property claimed having been found by the court to be the sum of thirty-nine [five?] thousand dollars, and the property claimed having been taken into possession of the plaintiff, therefore --"
"It is adjudged that the plaintiff have and retain possession of the personal property described in the complaint, together with the costs of this action, amounting to the sum of five hundred and thirty-nine dollars. "