Ratke v. Rinker

Pattison, J\, delivered the opinion of the Court. In this case the appellee filed his bill in the Circuit Court for Allegany County, in equity, alleging therein that he, in August, 1910, contracted with the appellant to build for him a dwelling house on a lot of ground owned by the appellant in the city of Cumberland, By the contract -the appellee was to do -the work and furnish the materials to be used in the erection of said building. The bill'further alleged that the plaintiff performed his part of the contract in accordance with the terms thereof, but alleges that the defendant has failed to pay unto him the whole of the amount owing ■unto him for the work done and materials furnished in the ■erection of said building as agreed upon by and between the plaintiff and defendant, and because of the defendant’s failure to pay the whole amount thereof the plaintiff filed in the office of the clerk of the Circuit Court for Allegany County a mechanic’s lien for the amount so unpaid, against said building and the ground upon which it is erected as well as the ground immediately adjacent thereto, claiming therein that the amount of balance still owing him by the defendant is $573.59. The bill then alleges that the above amount is still unpaid and in the prayer thereto the Court was asked to pass a decree for the sale of said property, or so much thereof as was necessary for the payment of said mechanic’s lien claim. ²⁹¹ The defendant in his answer to the bill not only admitted the execution of the contract, as the bill alleged, but also admitted that the “defendant fulfilled his contract as alleged in the bill,” but averred “that said contract was fulfilled and completed not by the plaintiff alone, but in conjunction ' with one George A. Coleman, his partner in said contract.” The answer then admits the filing' of said mechanic’s lien, but char-ges that the claim thereunder “is wholly erroneous and unfounded,” and alleges that the defendant owed no part of the amount claimed to be owing by him to the plaintiff, but alleges that the sum so claimed to be owing was duly paid by the defendant to “Coleman and Einker, partners aforesaid,” upon the completion of the work.

The learned Court below after considering the evidence taken in the case passed a decree for the sale of the property as prayed, and it is from that decree that this appeal is taken. It is not claimed by the defendant that he has paid to the plaintiff the entire amount that was to be paid under the contract for the erection of the building therein named, for of this sum he alleges that he has paid the amount so claimed by the defendant to Coleman for the alleged firm of Coleman and Einker, although the record discloses that the amount paid to Coleman was only $546.59. The defendant’s contention is that a co-partnership existed between Einker and Coleman in the erection of said building and that the payment to Coleman, one of the partners, was a payment to the co-partnership or firm, and that such payment together with the amounts previously paid was in full payment of the amount to be paid under the contract with the plaintiff for the work done and materials furnished thereunder. The plaintiff, however, denies the existence of the alleged co-partnership and contends that the amount paid to Coleman without authority from him was not a payment upon the amount to be received by him under his contract with Eatke, the defendant, and that it cannot be so considered. ²⁹² Therefore, as be contends, the above stated amount is still owing to him by the defendant.

It will thus be seen that the defendant makes his defense in this case upon the existence of the alleged co-partnership. Ooleman testified that prior to the execution of the contract mentioned, he had formed a co-partnership with Rinker “on some work in South Cumberland,” and while at this work he was told by Rinker that he had been asked by Ratke, who was thinking of building a dwelling, to prepare for him plans therefor. This Rinker undertook to do and submitted several plans to Ratke, but none of them were accepted, and that it was then that he, Coleman, with Rinker, went to see Ratke and talked with him about the kind of house he wanted and upon their way home Rinker suggetsed to him that they do the work together. Coleman then prepared the plans, which when carried by Rinker to Ratke were accepted by the latter and a contract was then executed by Rinker and Ratke, but Rinker told him when he returned after the execution of the contract, that they would draw a contract between them in regard to the work, “but we never did.” Nothing more seems to have been said between Rinker and Ooleman as to'the partnership, except that Coleman later on in his testimony stated that it was understood “when we were done that we were to split even on the profits.” The work was started, but before it was completed the plaintiff was taken sick with typhoid fever and was for six or more weeks confined at his home and hospital.

Coleman worked upon the building both before and after Rinker was taken sick, and during the illness of the plaintiff and until the building was completed the work was superintended by him exclusively. It was while Rinker was sick that Coleman called upon the defendant for -the money that was paid to him. The money so ..paid to him, as he testified, is still in the hands of his attorney, Mr. Cochrane. Mr. Ratke testified that Rinker submitted to him the plans for the house.

He did not know that Coleman or anyone ²⁹³ else bad anything to do with the plans, although he heard Coleman say to Rinker on the visit to his house, when the plans submitted to him were not accepted, “we will have to draw a new plan.” He further testified that after the house was finished Coleman called upon him saying lie needed money, to which he replied, “All right,” that he had the money in Mr. Cochrane’s office and directed Coleman to meet him there the following morning, at which time he received a check for the amount of $556.59. Ratke when asked if he thought Coleman had the right to receive the money, said Mr. Rinker told him when he made the plans that Coleman was the architect and he thought as Mr. Rinker was sick that Mr. Coleman, as