Sterios Thomopulos & Anor. V. John Mandilas (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Partnership—Evidence of formation.

Facts

Respondent averred in his Statement of Claim that by a verbal agreement in March, 1936, he and Appellants became partners on the footing that his share of profits and losses would be 25 per cent, 1st Appellant’s 50 per cent and 2nd Appellant’s 25 per cent. In March, 1936, 2nd Appellant was in Europe. According to Respondent’s evidence (which was believed) they all met. at Ondo at Christmas, 1935, and decided that 1st Appellant should also go abroad at the end of March, 1936, Respondent taking entire charge of the business, which should from 1st April become a partnership on the above footing of sharing profits and losses ; further, Respondent and 1st Appellant met in March and confirmed the Christmas agreement but left it to be drawn up after 2nd Appellant’s return. 1st Appellant gave no evidence.

For Appellants it was argued that if Respondent’s case was a contract made at Christmas, it was at variance with his pleading ; if one made in March, 2nd Appellant’s absence refuted the averment of the three verbally agreeing.

Respondent’s case was that the March agreement between him and 1st Appellant bound all three as 2nd Appellant had already agreed to the terms, and that subsequent conduct of all three confirmed existence of partnership.

Held

that at first there had been a mere ” agreement to agree “, which subsequently was implemented by all parties as shown by their conduct, the mode of dealing adopted by partners being evidence of the formation and original terms of a partnership if such terms are not set forth in any document.

The Appeal is dismissed with costs assessed at 50 guineas.