Abbott v. Hibbitts

⁸ Pattison, J., delivered the opinion of the Oourt. The appeal in this case is from an order of court, ratifying and confirming the report and account of the auditor, and ordering and decreeing! that the appellant, Gheen B. Abbott, pay to the appellee, John J. Hibhitts, the sum of $4,371.62, the amount shown by the account of the auditor to he owing to the appellee by the appellant, -as his share of the profits in the construction by theqn as partners of two gun emplacements for the United States Government on the Aberdeen Proving Grounds in the year 1920. Whether1 said decree or order1 was properly passed depends solely upon the question whether a partnership existed between them in the construction of the emplacements. ' In 1919, and prior thereto', the .appellant, who' was employed by tire Government as advising superintendent of sewers and water lines, and the appellee, were at worlc at and near the Aberdeen Proving Grounds, and they occasionally met while so engaged in their work, or in going to and returning from it. In December, 1919, the appellee suggested to the appellant that they go in the contracting business if they could raise the money therefor, to which the appellant readily assented.

Their plan, it seems, was to incorporate a company with a capital stock of $25,000, if they could interest others in its formation. To this end they called upon on© or more persons to aid them financially in so doing, but were unsuccessful in their efforts, although they were told, if they were able to obtain good contracts, arrangements could be mad© by which they could be financed. While the parties were still endeavoring to form the corporation, two gun emplacements were to he constructed by the Government at the proving grounds, and Hibhitts mentioned this fact to Abbott, and Abbott suggested that they file a bid with the Government for the- construction of the emplacements. To- this suggestion the appellee assented, and the hid was thereafter filed and accepted by the Government. ⁹ The hid and contract, however, was not. made and. executed in the name of Abbott and Hibbitts but in the name of G. K. Abbott and Sons..

The appellee explains why the: bid was made, and the contract executed, in the name of Gr. B. Abbott and Sons, by saying that although he had received notice from those in authority that the work in which he was engaged would be ■finished on the 38th day of January, he wras at that time (January 2nd) employed by tbe Government, and would be so. employed until the 38th of January, for which reason, as he says, he told Abbott that he thought it best not to have his (Hibbitts’) name appear in the bid or contract, and Abbott said, “All right,” and the bid was made and tbe contract ■executed by Abbott in the name of G. B. Abbott, and Sons, Tbe contract made by tbe Government .for the construction of the emplacements called for unit prices, including so much per yard for excavation, and as stated by Hibbitts, “We were, at the end of the month, to give our estimate for all the work we had completed. We did not really have to wait until the first of the: month. If we took out one hundred yards of excavation on the 30th of the' month or on the 3.5 th of the month we could get our money per yard, less twenty per cent., for the * * * completed work”; that “all equipment was furnished by tbe Government, the concrete mixer, tools, picks and shovels.” The Government furnished everything that was required “with the exception of stone, cement, hydrate lime and^oundation” and the sand taken out in making the excavation was used in mixing concrete, and, as stated by Hibbitts, very little capital was required to finance the job.

Hibbitts also testified that the efforts made by them to form a corporation, or to raise the quantity of money above mentioned ($25,000), were made with the view of taking care of large contracts “such as the construction of iron hangers or exhibition work”; that they made at least three bids on contracts of this class, one .amounting to so much as $90,000. These were made in the name of Abbott and Hibbefts and were made during the progress of the work on the ¹⁰ gum emplacements, but they in each instance failed to obtain the contract, and consequently they were not required to call upon the party that had promised to finance them in the event of their getting the contracts. The appellee testified that when the bid for the construction of the emplacements was prepared by Abbott, be brought it to him, who, at the time, was in the tool room of the Aberdeen Proving’ Grounds with Hugh. M&Heal, a young man who attended to the tools.

This was on the second of January, 1920. The bid was submitted to. the appellee for his inspection. It contained a charge of $2.25 a yard for excavation. Hibbitts said, “We will boost that ten cents., making it $2.35 a yard” which was done. “Thei concrete I left at. the unit price and all the other was left at ..the unit price.

He (Abbott) left and went up to. the administration building .and put in the estimate. I waited at the shop, until he came down and on his return he .says, ‘Well, we have landed the contract, but I am sorry we did not add on $5,000 more.’ I told bim when he came in, it is just this., never mind, we will go. along and we will make money out of the job'. We have a. good price.” McHeal was iu the room and heard the alleged conversation between Abbott and Hibbitts, and .testified t-bat Hibbitts told Abbott to raise the price of excavation ten cents per yard, and that at the conclusion of their conversation Abbott “took the papers and went out of the shop., and when he came back he said to Plibbitts, ‘We have got the job..’ ” When asked what else was said in the conversation he stated that Abbott said “be was sorry that he did not add $5,000 more to- it,” and in reply thereto Hibbitts said, “We will lot it. go.” The bid upon the gun emplacements and the contract executed therefor were made while they were endeavoring to incorporate a company, or at the time they were attempting to obtain assistance in financing contracts of a larger character than the one here involved, and as testified to by Hibbitts, Abbott said to bim that he had worked on gun emplacements and had made about five or six thousand dollars, and that he ¹¹ could finance the construction of these gun emplacements, “because I told, him I had just bought a house outside of the house I was living in for investment, and if he could not, I would raise a mortgage on it. 1 was going to sell it * * * and he said it was not necessary, it will not he required, because we arc' getting our estimates.” By which he meant that they would receive from time to time, as the job progressed, eighty per cent, of the amount, allowed for the completed work. ITibbitts also testified that it was agreed between him and Abbott that they should ho equal partners in the transaction, that he was told “over and over” again by Abbott that he was to share in the1 profits,, that Abbott said to bim, “We will make at least- from $2,500 to $3,500 out. of the job.” The appellee further testified that, he started to work on the job February 2nd, 1920, and worked every day thereon until April 26th, when he was taken with a (¡old, on account of which he was required to remain -at home until the, 30th of April, when he again returned to. his work, but found himself unable to work.

On the 11th of May he again returned to his work and asked Abbott if he could give him any help, and was told by him that he could not; that Abbott collected all the estimates and deposited the same in the hank in the name of G-.

II

Abbott, and Sous,; that after the work had progressed for some time the soil came upon the job to work and, as be testified, was paid, first, thirty, and afterwards, forty dollars per week; that from the time when the son entered upon the job the conduct of Abbott, and bis treatment of Mm, changed, causing' him to suspect Abbott of unfairness and wrong dealings with him, and he asked that the money thereafter received upon the estimates he. deposited in the name of himself and Abbott, but. Abbott refused to do it.' Hibbitfs further testified that he never received any compensation for his labor, that his name wa,s never upon the pay-roll, and that nothing was ever said to him by Abbott in regard to paying him for the work until after the rupture or break between them, when the offer to pay him $600 — $200 per month for three months ¹² —was made to- Mm through. Abbott’s attorney; upon one occasion, however, Abbott, after collecting the first estimate, asked him if he needed any money, to which he said, “Ho, I can do without ;any money, as we need it in the business,” and Abbott said to him “I feel the same way about it.” Thereafter he was not told by Abbott when the estimates were prepared and the money received thereon, hut on one occasion Abbott called upon him, saying, that he was running short of money, and Hibbitts offered him a note for $2,800. This was between the 5th and 10th of April, the day on which Hibbitts had sold his house.

Abbott said it is not necessary “because I will get the estimate.” As stated by Hibbitts, Abbott, as he after-wards learned, had .at that time received the estimate of April first, although Abbott said nothing to him about it. It is upon the above stated evidence that Hibbitts contends that a partnership existed between him and the appellant in the construction of the gun emplacements. The appellant, on the other hand, contends that a partnership never existed betwen them, because of the failure of the appellee to provide or furnish Ms part of the money to finance the transaction. Abbott testified that not only was the hid made and the contract executed in the name of Gr.

B. Abbott and S'ons, but the bond for the proper, performance of the contract was likewise executed by Gr. It. Abbott and Sons, and the premium thereon paid by him. It was admitted, however, by Abbott, notwithstanding these facts, that Hibbitts was to share in the profits if he put up his part of the money necessary to finance the job,