Smith v. Padrosa

Fish, C. J.

(After stating the foregoing facts.)

1. Taking the allegations of the petition to be true, a partnership existed composed of the plaintiffs and the defendant for the operation of a sawmill business. Floyd v. Kicklighter, 139 Ga. 133 (76 S. E. 1011). The assets of the partnership, according to the allegations, consisted not only of the output of the mill, but of the mill itself in its entirety and the timber originally conveyed to the defendant by Nail. The contract of partnership was not required to be in writing, although standing timber, which is realty, was to become a part of its assets to be used in the operation of the partnership business. Lane v. Lodge, 139 Ga. 93 (76 S. E. 874). Nor did the allegations of the petition show diat the partnership agreement was without consideration as to the plaintiff Schuyler. While the whole output of the mill was to be purchased by the defendant, Schuyler was to take all orders for lumber and to discharge all duties incident to taking them; and it does not follow, merely because the defendant was to purchase the whole output of the mill, that Schuyler was left with nothing to do in reference to such orders as the defendant might give for lumber. It may fairly be assumed that the defendant would desire different kinds and amounts of lumber during the operation of the mill; and according to the petition it was Schuyler’s duty to take all orders and to discharge all duties incident to filling the same.

2. The allegation of the petition in reference to the original agreement between the plaintiff Smith and the defendant, relating to the purchase of the timber from Nail, that the -defendant after taking to himself a conveyance of the timber “held said timber as a speculative investment for the joint benefit, share and share alike in the profits, of himself and the said Smith,” was a mere conclusion of the pleader and unauthorized by the terms of the contract as set forth in the petition. The special demurrer to this allegation was properly sustained. The other grounds of special demurrer were not meritorious.

The court erred in sustaining the demurrers and in dismissing the petition.

Judgment reversed.

All the Justices concur.