Kelly v. Devlin

Headnote

Copartnership—plaintiff seeking to establish copartnership by parol, with one deceased, is to be held to strict proof—when against public policy.

Appeal from judgment dismissing complaint, with costs.

The action was brought to establish, among other things, the existence of a parol contract of copartnership between plaintiff and defendant’s intestate.

The court, at General Term, said: “Although there are in the case a number of particles of evidence, consisting mostly of loose declarations to the effect that Charles P. Devlin, in his lifetime, and the plaintiff were partners in reference to some things, yet, upon the whole case, the plaintiff failed to establish that in point of fact a partnership, such as that alleged in the complaint, ever existed between them in reference to the matters in issue. As to these matters the alleged partnership confessedly was a secret one and entered into for the purpose of circumventing the ordinances of the corporation of the city of New York against

secret combinations in the procurement and execution of contracts for public work. If that, of itself, did not render the alleged partnership illegal, if it existed at all, because against public policy, which is a question not necessary to be determined now, then the plaintiff who seeks to establish it against the representatives of a dead man, should at least be held to strict proof. The burden rested upon him to clearly establish, not only that the relation which existed between him and Charles P. Devlin in respect to the particular contracts in controversy, - was a partnership, but also what its terms were. He did neither, and on several important occasions his conduct with regard to the matters in dispute was shown to have been wholly inconsistent with the theory that a partnership existed.”