(186 N.W.) 2. Partnership 336 (3) Referee's finding on accounts held sustained by evidence. The findings of the referee are supported by the evidence as to certain items in the account referred to in the opinion. 3. Partnership 83-Partner's claim for compensation sustained where it can be fairly implied that compensation was intended. As a general rule one partner is not entitled to compensation for services performed in the course of the business of the firm in the absence of an agreement therefor, express or implied. The rule is not inflexible or of universal application. Where it can fairly be implied from the course of dealing between the partners, or from circumstances of equivalent force, that a partner was to be compensated, his claim will be sustained. [1] 1. At the outset it is necessary to con sider a question of practice not alluded to in the briefs of either party. We are of the opinion that the correct practice in cases such as this is indicated in Kelso v. Youngren, 86 Minn. 177, 90 N. W. 316. A referee appointed to report a judgment possesses substantially the same powers as a trial judge. He has authority to revise and amend his findings of fact and conclusions of law until judgment has been entered. He may not entertain a motion for a new trial. His findings stand as the decision of the court, and judgment may be entered upon them. The referee in the case at bar made findings and an order for judgment. It is not entirely clear whether his appointment conferred authority upon him to do so. The judgment directed that an accounting be had of the transactions of the partnership and the profits thereof, named the referee, and invested him with "such powers and duties as are given to a referee by statute." If this language.meant that he was merely to report the facts, he exceeded his powers in making findings and ordering judgment, but, even if his powers were limited, his report had the effect of a special verdict (section 7823, G. S. 1913), and a trial judge may not amend a verdict by substituting his conclusions upon questions of fact for those found by the jury (Miller v. Hogan, 81 Minn. 312, 84 N. W. 40; Schloss v. Lennon, 123 Minn. 420, 144 N. W. 148). Neither party has questioned the authority of the referee to do what he did. Neither have they questioned the power of the district judge to modify his findings. Nevertheless we feel bound to give Appeal from District Court, Carver Coun- the referee's findings the same consideration ty; C. M. Tifft, Judge. Proceeding by Paul Sons and another against Theodore Sons, for a partnership accounting, in which findings were modified, and judgment entered upon them as modified, and plaintiffs appeal from the judgment. Modified and affirmed. See, also, 186 N. W. 811. W. C. & W. F. Odell, of Chaska, for ap pellants. W. H. Leeman, of Henderson, for respond ent. LEES, C. The main facts in this case are sufficiently stated in Sons v. Sons, 145 Minn. 367, 177 N. W. 498. The referee before whom the accounting was had made findings and an order for judgment, with which both parties were dissatisfied. Upon their several motions the findings were modified by the district judge, and judgment entered upon them as modified. Plaintiffs have appealed from the judgment, attacking it on three grounds. they would receive had they been made by the district judge whose power to modify them is more than doubtful. [2] 2. Wheat was raised on the farm in each of the six years covered by the findings. The quantity so raised was shown by records made when it was threshed. It is undisputed that 7,474 bushels in all were threshed. Plaintiffs contend that defendant received $17,579.96 from sales of wheat during the six years in question, of which $1,376.65 was for wheat owned by Philip Sons, a brother of these parties, and that defendant is chargeable with the difference. The referee found that he was chargeable with $13,175.40. In arriving at the amount he deducted 200 bushels a year from the amount threshed, for seed, flour, and feed, found the remainder, or 6,274 bushels, was sold at an average price of $2.10 a bushel, and made a charge against defendant accordingly. The district judge reduced the charge to $12,756.51. It would serve no useful purpose to discuss the evidence relating to this item in the account. A careful examination of the record has satisfied us that the referee's finding is fairly For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes supported by the evidence, and hence it equally; that from the time the land was should be allowed to stand. purchased until March 1, 1913, they lived to3. The referee found that, during the six gether on the farm and gave their united years covered by the accounting, the defend- services to carrying it on, and that after ant received $900 from the sale of eggs. March 1st the defendant remained in possesPlaintiffs contend that a much larger sum sion of the land and personal property and should have been charged against defendant continued the farming enterprise alone durfor this item in the account. The districting the six ensuing years. Upon this state judge reduced it to $600. We think the evidence supports the referee's finding as to this item, and it should also be allowed to stand. [3] 4. The referee found that after March 1, 1913, the defendant gave his time to the operation of the farm, and that plaintiffs per formed no labor and rendered no services in 'conducting the farming operations during the entire period covered by the accounting. He further found that there was no express agreement that defendant should receive compensation for his services, and therefore he was not entitled to it. The district judge struck out the referee's conclusion, and allowed defendant $2,400. By proper assignments of error, plaintiffs challenge defendant's right to claim compensation in the absence of an agreement therefor. As we read the briefs, the amount allowed is not questioned, if defendant is entitled to anything at all as a matter of law. There is ample evidence in the record to sustain a finding that $2,400 represents the reasonable value of his services. The sole question, then, is one of law. of facts it seems to us that defendant comes within a recognized exception to the general rule to which we have referred. In Emerson v. Durand, 64 Wis. 111, 24 N. W. 129, 54 Am. Rep. 593, we find this language: to render his services in the partnership busi"The rule that each partner must be assumed ness gratuitously is not inflexible or of universal application. It has its exceptions, founded in wisdom and experience. Where it can be fairly and justly implied from the course of dealing between the parties, or from circumstances of equivalent force, that one partner is to be compensated for his services, his claim will be sustained." In Mondamin Bank v. Burke, 165 Iowa, 711, 147 N. W. 148, we find substantially this statement: An agreement for compensation may be implied from circumstances. It will be implied where one partner has had full charge of the partnership business with the tacit acquiescence of the other, who has devoted his own time and energies to his own personal affairs. It will be less readily implied where both give some degree of active The question is one which has been the attention to the promotion of the common interests. In Denver v. Roane, 99 U. S. 355, subject of as much controversy as any other in partnership relations. The general rule 25 L. Ed. 476, it was suggested that by enteris well settled that one partner is not en- ing into a copartnership each partner undertitled to compensation for services perform- takes to share in the labor necessary to proed in the course of the business of the firm ir mote the common interests of the firm, this the absence of an agreement therefor, ex- being the very foundation of the right to press or implied. 20 R. C. L. p. 877; 30 Cyc. share in the earnings. It is conceded that 448; note to Williams v. Pedersen, 17 L. R. he who acts so as to treat the partnership A. (N. S.) 385; Rowley on Partnership, § 350. as a nullity as regards his own relations canDo the facts and circumstances disclosed by not complain if the partnership is so treatthe evidence justify the conclusion that such ed for other purposes. Perhaps the rule is an agreement may fairly be implied? The different where a partner is excluded from record returned on the former appeal con- the exercise of his partnership rights and tains the testimony of all the parties. A proffers his assistance, which is rejected by brief quotation from that given by the plain-his copartner. Major v. Todd, 84 Mich. 85, But this is not such a case. tiff, Paul Sons, explains the circumstances 47 N. W. 841. under which he and his sister left the farm These two brothers quarreled because one in 1913. Being asked why he left, he anclaimed the farm belonged to him alone. In stead of staying on and vindicating his rights, Paul went away, taking his sister with him. They located on another farm, to which they continuously devoted all their time and energy thereafter. They have retained all the earnings from their independent enterprise. The profits of the farm they left are the fruits of defendant's industry. After March 1, 1913, he alone conducted the joint enterprise. Plaintiffs neither contributed nor offered to contribute their services. The partnership agreement required them to contribute their time and labor equally with (186 N.W.) See, also, 186 N. W. 809. right to share in the profits. Under these Proceeding by Paul Sons and another circumstances we think there is an implied against Theodore Sons, to recover a proporagreement to compensate defendant by de- tionate share of profits from defendant's ducting the reasonable value of his services prosecution of a farming enterprise. Defendfrom the earnings of the copartnership. ant's general demurrer to the complaint was When plaintiffs share in the profits they re sustained, and plaintiff's appeal. Order afceive the benefit of defendant's services and, firmed. by receiving the profits, impliedly undertake to make compensation for the services, under the rule that where there is nothing from which a contrary intention or understanding is to be inferred, the law will presume that every man has contracted to perform that which reason and justice dictate. Deane v. Hodge, 35 Minn. 146, 27 N. W. 917, 59 Am. Rep. 321. W. C. & W. F. Odell, of Chaska, for appellants. W. H. Leeman, of Henderson, for respondent. LEES, C. Another phase of Sons v. Sons, 145 Minn. 367, 177 N. W. 498, is presented It follows from what has been said that here. The judgment affirmed on the first apthe judgment should be modified by adding peal determined that the plaintiff's and the $179.72 to the amount awarded thereby to defendant owned the farm in litigation as each of the plaintiffs, that amount represent-tenants in common, plaintiffs each owning ing their individual shares in defendant's receipts from the sale of wheat and eggs as found by the referee, but withheld from them by the modification of his findings made by the district judge, and that in all other spects the judgment should be affirmed. It is so ordered. an undivided one-fourth and defendant an undivided one-half thereof; that for six years following March 1, 1913, defendant had exclusive possession of the farm and re received the profits derived from it; and that he and the plaintiffs were copartners in the farming enterprise, and entitled to share in the profits in the proportions in which they owned the land. It was adjudged that the partnership should be dissolved, and an accounting had, covering the partnership affairs up to the entry of judgment on June 21, 1919. SONS et al. v. SONS. (No. 22635.) (Supreme Court of Minnesota. Feb. 10, 1922.) (Syllabus by the Court.) 1. Tenancy in common 28 (3)-Tenant may occupy common property, and one cannot ordinarily recover rents and profits from another occupying whole. Each tenant in common has the right to occupy the common property, and there can be no recovery of rents and profits from one who occupies the whole property unless the occupant has excluded his cotenant or agreed to share the profits with him. Section 8084, Gen. St. 1913, has not changed this rule. 2. Tenancy in common 28(2)-Rents and profits recoverable from one collecting and keeping more than his share from third per son. The rule does not apply where one tenant has collected and received rents from a third person, and has kept more than his just share. 3. Tenancy in common 28 (4)-Cotenant excluded from possession by fellow tenant may recover only reasonable rental value of his interest, and not profits. The present action was begun in February, 1921, to recover plaintiff's proportionate share of profits derived from defendant's prosecution of the farming enterprise during the years 1919 and 1920, he having remained in possession until September 15, 1920. The complaint alleged that while in possession defendant asserted that he was sole owner of the farm, and that plaintiff's had no rights or interest therein, had excluded them from possession until judgment was entered in a Suit for partition they had instituted, had appropriated to his own use all the products of the farming seasons of 1919 and 1920, which were of the value of $2,500, and refused to account to plaintiffs therefor. Judgment was demanded for an accounting to determine the value of plaintiffs' proportion of the farm produce and the recovery of the amount so determined. Defendant demurred to the complaint on the ground that it failed to state a cause of action. The demurrer was sustained, and plaintiffs appealed. [1, 2] The sole question is whether plainA cotenant excluded from possession by his tiffs can maintain an action to recover the fellow tenant is entitled to recover only the value of their share of the farm produce, all reasonable rental value of his interest in the of it having been appropriated by the defendcommon property, and cannot compel an ac-ant, or may recover only the reasonable rentcounting for and recover a share of the profits actually received by the occupying tenant. al value of their interest in the farm. lf the latter was their only remedy, the demurrer was properly sustained, for no facts Appeal from District Court, Carver Coun- were alleged which would entitle them to ty; C. M. Tifft, Judge. give evidence of such value. The partner For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ship having been dissolved by the judgment, with the value of grain harvested with his the rights of the parties subsequent to June 21, 1919, must be determined by the law relating to tenancy in common. In the absence of a statute containing some provision to the contrary, each tenant in common has the right to occupy the common property, and there can be no recovery of rents and profits from one who occupies the whole of the property unless such occupant has excluded his cotenant or has agreed to share the profits with him; and our statute (section 8084, G. S. 1913) has not changed this rule. Kean v. Connelly, 25 Minn. 222, 33 Am. Rep. 458; Hause v. Hause, 29 Minn. 252, 13 N. W. 43; Tiffany on Real Prop. p. 675. But the rule does not apply where one tenant has collected and received rents from a third person and has kept more than his just share. Kean v. Connelly, supra; note to Schuster v. Schuster, 29 L. R. A. (N. S.) 224-229; note to Johnson v. Johnson, L. R. A. 1918B, 607. own labor and at his own expense before he was evicted; that the plaintiff's only remedy is an action for mesne profits, the amount of recovery being limited to the annual rental value of the premises wrongfully withheld from plaintiff. In Ford Motor Co. v. City of Minneapolis, 147 Minn. 211, 179 N. W. 907, the same rule was applied as between the taker of property by right of eminent domain and the owner who occupied it between the times when damages were awarded and paid. [3] In the course of the opinion Mr. Justice Holt remarked that, where the former owner is considered in possession under an implied contract to pay for use and occupation, or as a trespasser or disseizor ousted by ejectment and liable for mesne profits, the measure of damages is the same, namely, the fair rental value of the part occupied. We are of the opinion that this is the rule which should be applied in a case such as we have here, and Defandant has occupied the common proper- that plaintiffs should have brought their acty himself, not receiving any rents from third tion to recover their share of the reasonable persons, but excluding plaintiffs from pos- rental value of the farm instead of suing session, and appropriating all of the farm to obtain an accounting for profits received produce. Must he account to plaintiff's there- by defendant. Reaching this conclusion, we for, or is he liable only for the reasonable do not stop to consider the sufficiency of the rental value of their interest in the farm? allegations of the complaint respecting plainIn Cook v. Webb, 21 Minn. 428, upon a simi-tiffs' exclusion from possession. lar state of facts, it was held that the rem- Order affirmed. STATE v. FORD. (No. 22672.) (Supreme Court of Minnesota. Feb. 10, 1922.) (Syllabus by the Court.) Husband and wife 313-Evidence held to sustain finding that defendant had deserted and failed to support his wife. The evidence in this case is sufficient to sustain a finding that defendant deserted and failed to support his wife while she was pregnant, that he intended to abandon her and that he had no lawful excuse therefor. 2. Husband and wife 313-Evidence held to sustain finding of defendant's abandonment of his wife in N. county. edy of a tenant who has been ousted from Defendant and his wife had lived together but a few days in Stearns county, Minn. She then went to the home of her parents in Norman county, Minn. He visited her there in regard to a home and support. There was no family home. He lived with his parents out of the state. The evidence sustains a finding of abandonment in Norman county. 3. Criminal law 1137(5), 1169(12)—In prosecution for wife abandonment, evidence of conversation between attorney and defendant's wife, and between the attorney and defendant, held not prejudicial error. While at St. Cloud, defendant arranged for his wife to consult an attorney. He called later and paid the bill. Evidence of conversations between the attorney and defendant's (186 N.W.) wife were elicited by defendant. Of this he cannot complain. Evidence of a conversation between defendant and the attorney held not prejudicial error. 4. Criminal law 814(3), 829(1)-It is not error to refuse instructions not applicable to the facts; or instructions on matters covered by others. meetings he sent her some money, but far from enough for her support. He was arrested February 11, 1921, and indicted May 10, 1921, for having abandoned his wife while pregnant. He was convicted, and he appeals. [1] 1. The evidence is in conflict but it is sufficient to sustain the verdict of guilty. There was no error in refusal of instruc- The statute is as follows: tions asked for by defendant. "Every husband who, without lawful excuse, Appeal from District Court, Norman Coun- deserts and fails to support his wife, while ty; Andrew Grindeland, Judge. Earl Ford was convicted of abandoning his wife while pregnant, and he appeals. Order affirmed. C. G. Dosland, of Moorhead, for appellant. C. L. Hilton, Atty. Gen., Jas. E. Markham, Asst. Atty. Gen., and M. A. Brattland, Co. Atty., of Ada, for the State. HALLAM, J. Defendant lived in North Dakota near the Minnesota line. Gladys Hoyme lived with her parents near Hendrum in Norman county on the Minnesota side. They became acquainted. Illicit relations followed and Gladys became pregnant. Defendant, while in Minnesota, was placed under arrest in proceedings to determine the paternity of the unborn child. Negotiations followed, and as a result defendant married Gladys at Ada, Minn., and the proceedings were dropped. This was in October, 1920. On the day of the marriage the two took a train for Fargo where they remained until next day. They then went to St. Cloud, where they rented rooms and kept house and defendant secured employment. They remained in St. Cloud about two weeks. Dur. ing this time defendant urged his wife to secure a divorce and sent her to an attorney for that purpose. She returned with the information that she could not secure a dl. vorce. Defendant told her he did not want to live with her and finally told her he was going to Oklahoma. They also talked of going back to Norman county or to his home in North Dakota. He says that she did not want to go to her home but that nevertheless one day she left a note in the room saying she was going home; that they talked together after that, and she said she was going home for a time and then going to Shevlin. He suggested that she go to Minneapolis, but she preferred to go to Shevlin. She left St. Cloud to go to Hendrum and then to Shevlin, He took her to the train. She went home and stayed there. Soon thereafter he left St. Cloud. A few weeks later he returned to his parents' in North Dakota. He called on his wife at Hendrum three times in all. They talked over their affairs and talked of living together, but came to no understanding. During the period that followed their pregnant, with intent wholly to abandon her is guilty of a felony." G. S. 1913, § 8666, as amended by chapter 213, Laws 1917 (Gen. St. Supp. 1917, § 8666). There is evidence that defendant deserted and failed to support his wife while pregnant, that he intended wholly to abandon her and that he had no lawful excuse for his conduct. The [2] 2. Defendant contends that the offense was not committed in Norman county, and that under article 1, § 6, of the Constitution of Minnesota, the district court of that county had no jurisdiction to try the case. question is not without difficulty, but we think there is sufficient evidence of abandonment in Norman county. There may have been an abandonment in St. Cloud, but, if so, it does not follow that there was not later an abandonment in Norman county. Desertion is a continuing offense and it may be a repeated offense. Defendant and his wife had been married in Norman county and she was living there. There was no family home. He came to her at her parents' home in Norman county and they negotiated there in regard to a home and support. He went away leaving her there. We think the jury might find that there was a desertion and abandonment of her there. The case is quite different from State ex rel. Delevan v. Justus, 85 Minn. 114, 88 N. W. 415, where the definite and only domicile of the family was in a county other than that in which defendant was prosecuted. The fact that defendant was living in North Dakota is not conclusive that there was not desertion and abandonment in Minnesota. 16 C. J. 164; Re Fowles, 89 Kan. 430, 131 Pac. 598, 47 L. R. A. (N. S.) 227; State v. Gillmore, 88 Kan. 835, 129 Pac. 1123, 47 L. R. A. (N. S.) 217; State v. Sanner, 81 Ohio St. 393, 90 N. E. 1007, 26 L. R. A. (N. S.) 1093; Re Kuhns, 36 Nev. 487, 137 Pac. 83, 50 L. R. A. (N. S.) 507. [3] 3. While in St. Cloud defendant arranged for a consultation between his wife and an attorney, J. B. Pattison. After the consultation, at which defendant was not present, defendant called and paid the bill. When he did so the attorney gave him some wholesome advice which he was, over defendant's objection, permitted to narrate. This is assigned as error. This evidence was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |