The finding of the trial court certainly sustains a judgment in favor of the plaintiff. The defendant contends that the finding is not supported by the evidence, and it requests the court to correct the finding in several particulars. Whether or not the finding should be corrected in any material parts depends upon the interpretation of the letter of March 16th, 1914, set out in the defendant's counterclaim. It is admitted that the packing mentioned in the plaintiff's bill of particulars was delivered to the defendant under the terms of a contract, the substance of which is contained in this letter. The claim of the defendant is that the letter shows that the parties had agreed to engage in a joint undertaking or venture, which, as between themselves, made them both liable for the losses incurred, and entitled to share in the profits of the venture, and since there were no profits, but, on the contrary, there were losses, the plaintiff could not recover in this action.
The trial court correctly interpreted the situation before it. It is evident that the parties contemplated that the plaintiff should manufacture the Libbey Packing, and the defendant was to pay the plaintiff twenty-three cents a pound. The defendant was to sell the same, and the profits from the sale, if any, were to be *Page 233 equally divided. This arrangement was to continue until May 1st, 1914, and thereafter the defendant was to manufacture the packing and receive therefor twenty-three cents a pound, before any profits were to be computed or divided. The plaintiff having performed his part of the contract, and delivered the packing, may recover under the common counts the price agreed to be paid.
The defendant's counterclaim was properly disallowed, as the court has found that the defendant had full opportunity to, and did, examine the packing, and all of it that was delivered was equally as good as that examined, and the defendant has never offered to return the same.
There is no error.
In this opinion the other judges concurred.