Rodgers v Edgecombe

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Hewlett, J.
• Judgment Date: 04 July 1977
• Neutral Citation: MS 1977 HC 3
• Docket Number: No. 45 of 1976
• Date: 04 July 1977

Rodgers

and

Edgecombe

Hewlett, J.

No. 45 of 1976

High Court

Partnership - Terms

Held: There was a partnership. The plaintiff was employed in the capacity and the partnership had been dissolved for more than (1) one year and the plaintiff was entitled to interest on the amount due to him. Judgment given for the plaintiff in the sum of $598.30.

Facts: The dispute existed between the parties who were independent building contractors and who collaborated to build a condominium for a client. There was a contract of agreement formed by the parties to govern their relationship. The main issue before the court concerned what were the terms of this assessment and in what capacity the plaintiff was employed.

Hewlett, J.

1 This is a dispute between two independent building contractors who collaborated to build a condominium at Richmond Hill for a client. The building contract was offered to and accepted by the defendant and the contract price agreed at $147,825.00. The defendant however had at that time two other jobs on hand requiring his personal supervision and on that account he found himself obliged to invite the plaintiff to join him on this condominium project. The parties accordingly entered into a written agreement on the 29 ^th October, 1975, as follows:

“This agreement made this 29 ^th day of October in the year 1975 by and between Joseph Edgecombe of Cavalla Hill in the island of Montserrat hereinafter called the contractor (of the one part) and Oliver A. Rogers of Belham in the said island of Montserrat hereinafter called the partner (of the other part) agrees as follows:– Whereas the Contractor has a building to construct, it is agreed between the Contractor and his partner that the main contract be signed solely by the Contractor. It is also agreed that a separate contract for the construction be made between the Contractor and his partner and signed by both, a copy of said being in the possession of each. It is also agreed that under the direction of the Contractor that his partner be responsible for the hire of all labour skilled and / or unskilled. It is also agreed that any one that the Contractor may recommend for employment shall be employed. A copy of all expenses for material, labour and truckage shall be in the possession of both the Contractor and his partner fortnightly. The Contractor and his partner agrees to accept a minimal weekly wage of $150.00. It is also agreed that at the end of the job and after all expenses have been paid that the Contractor will pay his partner 45% of the profit.

Signed Contractor	J. W. Edgecombe.
Signed Partner	Oliver A. Rogers.
Signed Witness	J. W. Edgecombe”

2 The one question that comes immediately to mind out of this agreement concerns the relationship of the parties - Were they partners or was the plaintiff employed? And following upon that there is the further question - Is a determination of that question material to a decision in this case? Rather unfortunately, both counsel in this case shrugged off these questions as being immaterial. Indeed, in that they failed to research the points, it seems to me that they both argued against their respective client's interest, because counsel for the defendant opined that the relationship was a partnership whereas counsel for the plaintiff thought it was not. In my view the issue is an important one, because if the relationship one of the master and servant, then the plaintiff's conduct in giving himself leave and staying off the job for fifteen working days may well have been a sufficient breach of the contract to justify his peremptory dismissal, thereby perhaps also disentitling him to any share of the profit under the contract or even postponing his claim until the completion of the job. And on the other hand if the relationship is a partnership at will with no fixed term of duration, although such a partnership may be determined by a partner on giving notice to the other, yet one partner cannot expel another unless the partnership agreement provides for this and that other is given an opportunity to be heard and to explain. This agreement in this case makes no provision for expulsion and it seems also to contemplate that the parties are partners, but of course, that by itself cannot determine the matter. Similarly, the reference in the defendant's letter to the plaintiff of the 19th March, 1976 to the “employment” and his actual testimony that he had employed the plaintiff as a supervisor cannot decide the question. Megarry J in Stekel v. Ellice [1973] 1 All E.R. at p. 473 has advised the proper mode of determination:

“What must be done, I think, is to look at the substance of the relationship between the parties, and there is ample authority for saying that the question whether or not there is a partnership depends on what the true relationship is and not on any mere label attached to the partnership. A relationship that is plainly not a partnership is no more made into a partnership by calling it one than a relationship which is plainly a partnership is prevented from being one by a clause negativing partnership.”

3 In this case, the respective duties of the parties are set out in the agreement and it is not provided there, nor can it be even implied from their conduct, that the plaintiff was subject to the defendant's control. Each was to receive a salary and a declared share of the profits. In my judgment it was a joint operation with a view to profit. I would hold wherefore that the parties had entered into a partnership agreement, albeit a partnership at will determinable by either party on notice. The defendant's letter of expulsion could therefore have achieved nothing had it not been that the plaintiff had concurred in the termination of the relationship. I therefore hold that the partnership was dissolved by mutual consent on the 1st March, 1976. The agreement having been signed, work began on the 2nd November 1975 with the plaintiff laying out the building and preparing the site. In the course of this the plaintiff had occasion to point out to the defendant the need for a variation of the plans on account of the peculiar configuration of the terrain, which variation was later approved by the architect at an additional cost of $45,000.00.

4 The plaintiff generally supervised the work and kept the time book of the workmen employed on the job. He also kept, with some assistance from the clerk, the daily account of the cost of materials supplied and the truckage expenses. The defendant on the other hand procured all the materials for the job and looked after the financial side of things. Accordingly, he collected the instalments from he client and issued all cheques for labour and materials. There was a clerk whose principal duty, as I find, was to prepare the weekly pay list from the time-book and to pay the workmen. And let me remark here that on a careful scrutiny of that time book, such as I was obliged to make in the exercise of taking the accounts I observed that except for the first two weeks of...