Kessler v. Antinora

653 A.2d 579 (1995)


P and D decided to build a house, and formed an agreement where P would provide the capital and A would actually build the house in the form of sweat of equity.  As part of the agreement P would get the invested capital first, then split the profit %60 (for P) and 40% (for D).  However, the house lost money.  P sued D to recover40% of the financial losses or roughly $65K.  The written agreement between the two was silent as to losses.

D argued the agreement was for a joint venture.  P argued the agreement was silent on the issue, which when read literally was only an agreement to divide profits, not losses.

Issue: Whether P can collect from D on lost profits, where there was no explicit agreement addressing lost profits.


The general rule is that for a partnership, where there is no agreement “the law presumes that partners and joint adventurers intended to participate equally in the profits and losses of the common enterprise, irrespective of any inequality in the amounts each contributed ot the capital employed in the venture, with the losses being shared by them in the same proportions as they share the profits.”


No, reversed, remanded.  D put in a significant amount of time and effort into the project.  While P lost profits, D lost time and hours of worked that could have been spent on another, profitable project.  Therefore, the agreement did contemplate repayment to P in the form of labor contributed.

“Each party shoulders a loss, one in determinative dollars; the other in labor, difficult, if not impossible to quantify.”

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