Truck Insurance Exchange v. Industrial Indemnity Co.

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

The following facts are uncontroverted.

1. No federal, or state, partnership return was ever filed for income tax purposes.

*3032. The joint bank account was credited for convenience only, and was established at the suggestion of the accountant, who knew the parties did not intend to operate as partners.

3. Each party had his own identification number for W-2 form purposes.

4. Each party had other farm operating expenses that each paid personally.

5. Each party owned all necessary potato farming equipment, except a planter and a cutter, to operate independently, but worked the seed potato properties jointly so they would not have to duplicate that equipment.

6. Each party farmed approximately the same acreage, and land lease payments were paid individually.

7. Each party carried separate liability insurance coverage, and paid the premiums individually.

8. Registration costs, and advertising expenses were halved by selling under a joint name.

9. Lab fees, involving the testing of approximately 46,000 plants, in a common plot, were reduced by using a joint name.

10. Individually owned trucks were fueled out of individually owned gas tanks, and each party paid personal property tax, and maintenance expenses on his own equipment.

11. Each party paid his own utility and power costs for his potato storage sheds.

12. The word “partnership” was never used by the parties in the magazine advertising, or on shipping tags.

13. Neither party could borrow or loan money for the other, and each borrowed individually to deposit funds in the joint account.

14. Each party described the working arrangement as a “trade of services.”

15. William Kimm and Wilbur Kimm never considered the working arrangement as a partnership.

16. Wilbur Kimm had previously been in an unsatisfactory partnership, refused to be in a partnership, and did not *304want his sons to be in partnership with him or with each other.

In my view, the foregoing constitutes sufficient evidence to find that no partnership existed, and I would therefore affirm the trial judge.