Opinion
November 16, 1955.
Appeal from Supreme Court, Columbia County.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Defendant Herman G. Pieck is the inventor of the "Pieck Vacuum Blower", a device for loading silage into silos. Judgment has been entered by the Official Referee after a trial in which plaintiff has been found to have been a partner with Pieck in the manufacture and sale of the device for a period from May 1, 1947, to August 11, 1951, to the extent of one third of the enterprise; and judgment of accounting has been directed accordingly. We think the judgment fully warranted by the record before us. It is conceded that in 1947 the parties had a conversation about plaintiff's investing in the business of manufacture and sale of the invention; that Pieck had no ready money for the enterprise and that plaintiff altogether put $19,500 into it. In some parts of appellant's testimony he seems to indicate that this was to be treated as a loan to him; in other parts he refers to "investment" by plaintiff in the enterprise and seems to rely for defense on the fact they never actually formalized their purpose by a signed instrument. Plaintiff testified that Pieck, after telling him that he did not have the money to put the invention "on the market" talked to plaintiff and "he put the proposition of going into partnership with him, and I said, `How much money is needed?'". Plaintiff also testified to his own participation in helping to establish the business. While appellant now treats plaintiff's advances of money as loans, he also testified that he asked plaintiff if he was interested in "investing some money in" the blower business. Pieck testified further that plaintiff said he could use the money "the way I wanted to use it. If anything ever materialized out of the blower business we would come to an agreement and could come to an agreement * * * that he didn't want any return for two years; he didn't expect any." On the making of the first advances of money, Pieck testified in respect of "what the arrangement was" that there "were conversations" but no "definite" understanding. All this seems to us to give singular force to the contention of plaintiff that there was a joint undertaking in the nature of partnership between the parties; and to sustain fully the finding of the Official Referee in this direction. Judgment directing an accounting unanimously affirmed, without costs.