Ziemann v. Grosz
Facts
Grosz operated a wrecking and salvage business and owned the property, including a home where Ziemann moved in after becoming involved in the business following her husband's death. The parties disputed their arrangement: Grosz said Ziemann was paid commission for sales, while Ziemann said they agreed he would have an ownership interest and share in proceeds. The district court found they orally agreed to split profits from existing inventory 70/30, give Ziemann 100% of proceeds from newly acquired inventory, allow him to live in the home as part of the arrangement, and make him responsible for most day-to-day business expenses. When Grosz later sought to evict him, Ziemann sued for a declaration of partnership, accounting, and dissolution, and Grosz denied any partnership and counterclaimed for trespass.
Issue
Whether the district court correctly concluded the parties formed an oral partnership and that Grosz contributed inventory to it, whether Grosz was entitled to statutory credit for her contributions during winding up, and whether the court properly rejected the trespass claim, awarded costs to Ziemann, and dismissed Ziemann's tort claims on summary judgment. The cross-appeal also raised whether Ziemann's summary-judgment evidence was admissible and sufficient to show damages.
Rule
A partnership is formed when two or more persons associate to carry on as co-owners a business for profit, whether or not they subjectively intend to form a partnership. The critical elements are intent to jointly carry on a business for profit, co-ownership, and a profit motive, with co-ownership shown by ultimate control or the right to exercise control. Property contributed to and used in the partnership may be found to be partnership property based on the partners' intent. On winding up, absent an agreement otherwise, N.D.C.C. § 45-20-07 requires settlement of partner accounts by crediting contributions and charging losses and distributions before any surplus is distributed. At summary judgment, inadmissible hearsay cannot be considered, and tort claims requiring damages fail if the nonmovant presents no evidence of specific or ascertainable damages.
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If a court applies the majority rule from this case, which fact most strongly supports finding a partnership existed?