The fair preponderance of the evidence establishes the fact of a partnership between plaintiff’s testator and the defendant, for the purpose of clearing up woodland in Hempstead and Douglaston and selling the timber. There was an agreement" in writing for sharing profits and losses equally. The defendant contributed the money necessary, in the first instance. Two parcels of land, the Berry and Douglas tracts, were purchased outright, title being taken in defendant’s name. As to these two parcels, it was provided that, after repayment of all advances made by defendant, any of the land remaining was to be divided equally between the parties. On other parcels, the Grace-Horsfield and Meakin tracts, the right to remove the timber was acquired. Two other parcels of land are involved, property purchased from John Pine and the estate of Sarah Bemsen. I find that this land was in the same category as the GraceHorsfield and Meakin properties. The firm had the right to remove and sell the timber, but there is no evidence of any agreement by which Doncourt had any interest in the fee. This partnership arrangement was made in 1880. It provided for no definite term. The work of clearing up the land was-to go on under the supervision of Doncourt. Denton was to receive all the money, pay the bills and render statements to Doncourt at regular intervals. .The return was to come from the sales of the timber. As the Berry and Douglas land was cleared, it rose in value, and Denton had the
The defendant, while in court, did not take the witness stand. Of course, his testimony as to personal transactions with his deceased associate was incompetent, if the plaintiff objected to it. I do not know whether objection would have been made or not. There was nothing illegal or improper in an offer by defendant to testify, but the offer was not made. The answer is full of specific denials of facts alleged in the complaint and proved on the trial without contradiction. On the issue as to partnership, defendant, in his answer and through his counsel on the trial, repeatedly denied a partnership, asserting that the arrangement was a “joint venture.”. For the purposes of this action, the distinction is not apparent. As Judge O’Brien says, in Wilcox v. Pratt, 125 N. Y. 688: “It is not necessary to inquire whether there was a partnership between the parties in the technical legal' sense of that term. Whether it was a partnership or a joint enterprise, the contract is to be enforced and the rights and liabilities of the parties determined upon the same principles as are applied by courts of equity to partnership transactions. (King v. Barnes, 109 N. Y. 267.)” The relationship had all the indicia of partnership. There was the use of a firm name and printed letter-heads and billheads in the firm name “ Denton & Doncourt,” with the names of the parties underneath. There was a joint enterprise with a provision for sharing the profits and losses—one man contributing the money, the other his experience and labor. Such contracts are not unusual, and it is difficult to see where any of the essentials of a partnership are lacking.
The actual work in the field went on from 1880 to 1885, or thereabouts. By that time a large part of the land had been cleared up. Denton supplied the money, Doncourt superintended the work. Denton made statements from time
But the strongest proof against defendant’s claim is found in his own handwriting. On July 15, 1892, Denton wrote a letter to Doncourt concerning some work of sawing timber on the land at Douglaston and stating that he, Denton, had
Again we find the strongest contradiction of defendant in his own letters written to the attorney Brainerd, who had correspondence with him, in 1895 and 1899, relative to an accounting between Doncourt and defendant.
There was vigorous opposition to the introduction of this correspondence on the trial; defendant insisting on the application of the rule that writings or statements made in the effort to compromise or adjust a dispute must not be taken against a party who is endeavoring to “ buy his peace.” I thought, at the trial, that the correspondence was admissible, but, at defendant’s insistence, took the matter under advisement. To save his rights, I now admit this correspondence, noting an exception to the defendant, because, in my opinion, this correspondence does not come within the class excluded for the reasons referred to. There was no litigation pending or threatened when attorney Brainerd wrote to Den-ton. He asked" for an accounting. Denton promptly answered, admitting his willingness to account, and his willingness to convey half the property to Doncourt on receiving the amount which he insisted was due him. These letters and the subsequent correspondence, running into 1899 down to the letter in August of the latter year, in which defendant writes: “ Doncourt has not one dollar equity in it,” are, it seems to me, all admissible and are almost conclusive on the existence of an unsettled account between the parties. Of course, statements made in an effort to compromise a dispute would not be admitted; but the difference is that here there was no dispute by Hr. Denton as to Doncourt’s right to an accounting. • The distinction is pointed out by Hr. Justice Jenks, writing in Collins v. McGuire, 16 App. Div.
In addition to the effect of these voluntary unsolicited statements in writing by the defendant on the right of plaintiff to an accounting, they have the additional effect of disposing of the defense of the Statute of Limitations, if that defense was available in any case. I think the Ten-Tear Statute applies to these transactions. But plaintiff contends, with some force, that in nó case would the statute begin to run until the defendant had sold the property, because, un
If Mr. Denton owes his dead partner nothing, he can establish it. He has the books and accounts and has had the financial management of the affairs from the outset. It may be that he is right in his statement that Doneourt has no “ equity ” in the property, but it should be more satisfactory to him to show it in the fair and honest way which he voluntarily proposed to Brainerd in 1891, than to defeat the claim of Doncourt’s executor on a plea of the Statute of Limitations, or on the evidence of his wife and daughter as casual listeners to part of a conversation sixteen years ago. Mr. Denton’s method of daily business, as indicated in the agreements drawn in his own handwriting, his accounts and statements in evidence, impresses me with the belief that, if he
There must be an interlocutory judgment for the plaintiff for an accounting. Submit requests to find at courthouse, Brooklyn, on or before September 1, 1907.
Judgment for plaintiff.