Clipping:The ruling in the Thorner case
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| Date | Sunday, December 31, 1882 |
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| Text | Justus Thorner vs. Geo. Harencourt et al. Judge Harmon decided this case yesterday. He said, Plaintiff claims that he was a partner with defendants Geol. Herancourt, Aaron Stern, Louis Kramer, Victor H. Long and John R. McLean, in which was known as the Cincinnati Base Ball Club; that he was the owner of a one-eight interest; that Louis Kramer and Victor H. Long each had a one-eighth interest, and that Aaron Stern and John R. McLean each owned a one-fourth interest, O. P. Caylor also claiming to be the owner of the one-fourth interest of John R. McLean; that in the prosecution of the business of the partnership, large profits were earned over and above all expenses, and are now on hand, amounting to about $15,000; that defendants have excluded him from his right in participating in the management of the affairs of the partnership, and are about to divide the accumulated profits among them to his exclusion. He prays an account of such profits, that a receiver be appointed, and that, after ascertaining the sums due the members of the partnership, such sums may be distributed to them accordingly. The defendants, other than McLean and Long, who have filed no answer, deny that plaintiff is or has been a partner with them, as alleged. It appears from the testimony that on June 28, 1881, a written contract of partnership was entered into, signed by Victor H. Long, Justus Thorner, John E. Price and O. P. Caylor, and articles drawn, providing that each one of these four persons should be an equal partner, and each entitled therefore to a one-fourth interest. It is conceded upon both side, that the sum of money to be put in by Justus Thorner, $100, was to be at the time payment was made, and in fact was furnished by the defendant Herancourt, and that the plaintiff never furnished any of the capital. The same was the case with Mr. Caylor and Mr. McLean, the latter furnishing the money, although Mr. Caylor signed the articles, and it further appears that Mr. Kramer was the real party in interest, although Mr. Long signed the paper. It appears, too, that Mr. Herancourt was present at the time Mr. Thorner signed the articles, and that it was understood between them, and understood generally, that the real partner was Mr. Herancourt, although the nominal partner was Mr. Thorner. Although, of course, as to third parties, the apparent partner would be held to be the partner, it would be questionable whether, in a court of equity, in a contest between the parties, the real state of facts might not be looked at without regard to the apparent state of facts. But, whether that be so or not, this written article can cut no further figure in the case, because John E. Price died shortly afterwards, and the firm was dissolved. The parties appear, however, to have gone one, rather considering the concern as a joint stock company, or as a mining corporation, such as they have in the Pacific States, where the death of a partner does not dissolve the concern, but whoever buys the deceased partner’s interest steps in and takes his place. So Mr. Stern, who had purchased the interest of Mr. Price, appeared in September, 1881, as the partner in his place, and the concern went on. Mr. Thorner contends that the one-fourth interest was, by agreement between him and Herancourt, to be their joint property–that is, this is the contention of his counsel–and that his right as such joint owner having been recognized by the Club by suffering him to appear at the meetings, he now has a right to an account. The exact state of the case, however, as detailed in his testimony and that of Mr. Herancourt, is as follows: Mr. Thorner says: “The agreement between me and Mr. Herancourt was that I should go and get up a club, and after the thing was in running order I could retire if I desired to do so, and he would give me half of his entire profits.” He says further that while he and Mr. Thorner were walking down Vine street one day, he remembered distinctly Mr. Herancourt saying: “I will give you twenty per cent. of my profits, if I make any.” It is agreed, therefore, between Mr. Thorner and Mr. Herancourt that Mr. Thorner is entitled to something for his trouble in getting up the club, but he certainly is entitled to that something on an agreement between him and Herancourt. The testimony does not show that there was ever any agreement between Thorner and the toher parties as to his having a right to a share in the profits of the club, or any agreement between Herancourt and the plaintiff that Thorner should have any right to look to the profits of the club. They were Herancourt’s profits which Herancourt was to share as both say. Herancourt was the real partner. He was so recognized, and, in the very midst of the career of the club, sent a written statement to the club that he was the sole owner, and Mr. Thorner entitled to no interest in the affairs of the club, and, upon the strength of that, at the request of Mr. Herancourt, Mr. Thorner was ignored. It appears by a decisive preponderance of the testimony that Mr. Thorner continually averred that he claimed no interest in the club; he claimed, so far as the club was concerned, to be acting in the general interests of the game of base-ball, his only expectation for compensation laying in his agreement with Mr. Herancourt. The only issue appearing in the evidence is an issue, not between the plaintiff and all these defendants, but between the plaintiff and Herancourt. That issue is not made upon the pleadings, and the well known rules of pleading require the issue made to be one which relates to all the parties. It is conceded by both parties that the agreement was between Herancourt and the plaintiff; that Herancourt should share his profits with the plaintiff, and the only dispute between them is as to whether the plaintiff shall have fifty per cent. or only twenty per cent. The Court can not, on an action for account against all these defendants, proceed to try an issue between two of them only. There is no averment here that Mr. Herancourt is not responsible or that he is insolvent, or in any danger of being insolvent, and, as the plaintiff’s rights depend upon the contract rights of Mr. Herancourt, instead of suing the partnership upon an account, he must sue Mr. Herancourt upon his contract. Whatever profits Mr. Herancourt got, and which he was to share with the plaintiff, he must share with him. Whether half and half, or to the proportion of eighty and twenty per cent, must be determined in an action between them on an issue made for the purpose. The petition must be dismissed. Cincinnati Commercial December 31, 1882 |
| Source | Cincinnati Commercial Tribune |
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| Submitted by | Richard Hershberger |
| Origin | Initial Hershberger Clippings |
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