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Clarke v. North

Supreme Court of New York, Appellate Division

May 8, 1912

WILLARD E. CLARKE, Appellant,
v.
HARRY B. NORTH and CHARLES F. NORTH, Respondents.

APPEAL by the plaintiff, Willard E. Clarke, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 27th day of December, 1910, upon the decision of the court rendered after a trial at the Albany Special Term.

COUNSEL

Duncan Douglas [Thomas Francis Woods of counsel], for the appellant.

MacLean & Neary, for the respondent Harry B. North.

Patrick C. Dugan, for the respondent Charles F. North.

LYON, J.:

We have reached the conclusion that the judgment appealed from must be reversed as being against the weight of evidence. The action was brought to establish the existence of an alleged partnership between the plaintiff and the defendant Harry B. North during approximately the six years from December, 1902, to December, 1908, and for an accounting of the partnership affairs. The business was manufacturing and selling paper boxes, and was conducted under the name of the 'Enterprise Paper Box Factory,' at Cohoes, N.Y. The defense was that no such partnership ever existed, but that the business belonged solely to the defendant Charles F. North, and that the plaintiff and the defendant Harry B. North were simply employees for no definite time, the former in charge of

Page 338

the manufacturing department and the latter as bookkeeper and business manager, each at the wages of twenty dollars per week. Charles F. North was the father of Harry B. North, and the latter resided with his father during the six-year period above mentioned. The alleged partnership agreement, as well as all negotiations leading to the establishing of the business, were verbal, and upon the trial the testimony of the plaintiff and of the defendants was flatly contradictory. The record, however, discloses certain uncontroverted facts, many of which are established by written evidence, relative to the action of the parties and the conduct of the business, which seem to us to have clearly proven the existence of the partnership, to the most material of which we will call attention.

In the month of December, 1902, it was decided after extended consultation between the parties to this action, extending over several months, to engage in the paper box making business and to occupy rooms which had been used for that purpose in a building belonging to the defendant Charles F. North, but which were to be vacated January first. The machinery needed in carrying on the business was then purchased through an agent of the manufacturers for the sum of $2,964.26, the defendant Charles F. North giving his check therefor. This sum, however, was repaid to him by three checks of the 'Enterprise Paper Box Factory, per H. B. North,' payable to the order of C. F. North as follows: December 15, 1905, $1,000; October 30, 1906, $1,000; January 17, 1907, $964.26. Upon the stub of the latter check appeared in the handwriting of H. B. North 'Bal. of machinery a/c of Hobbs Mfg. Co. Dec. 23, 1902, $964.26.'

In the month of December, 1902, before starting in business, a letter head was prepared by H. B. North, which was submitted to and approved by the plaintiff and by the defendant Charles F. North, in the upper left-hand corner of which was the name 'H. B. North,' and in the upper right-hand corner the name 'W. E. Clarke,' and between these names and above the center of the sheet the words 'The Enterprise Paper Box Factory, 49 to 57 Mohawk Street, Cohoes, N.Y. ' This letter head only was used during the whole six years' business career of the company.

Page 339

During the months of December, 1902, and January and February, 1903, the defendant Charles F. North paid for a horse, cardboard, freight, payroll and expenses for the Enterprise Paper Box Factory the sum of $1,145.17, an itemized bill for which, reading 'Enterprise Paper Box Factory * * * To Chas. F. North, Dr.,' had been presented to and for several years prior to the commencement of this action was in the pigeon hole of bills to be paid by the Enterprise Paper Box Factory. There was no proof offered of payment of this bill, and it appeared that the box factory had from time to time furnished boxes to the Anchor Knitting Mills, which were owned and operated by the defendant Charles F. North, and that the account between them was never settled.

February 7, 1903, in order to obtain working capital with which to carry on the business, a note was made as follows:

'Four months after date we promise to pay to the order of Ourselves Five Thousand and 00/100 Dollars at Manufacturers Bank ...


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