Problem
Tom and Jerry are longtime friends. Tom works in marketing. Jerry is an actor. Tom and Jerry have come up with a plan to boost Jerry's popularity before his audition for a lead role in the movie "Black Panther." Jerry's audition is in about a year's time. A good performance during auditions will not only guarantee him the role but will open up doors for other opportunities.
Tom and Jerry decided to buy a camera and a subscription to a content creator software. Tom and Jerry created a series of content and posted it in several social media pages. Jerry now has over 500k followers across several social media platforms.
Tom is in charge of editing videos, posting it on social medical platforms and monitoring the impact it has on the followers. Jerry is in charge of coming up with the content and producing it. Tom is more of behind the scenes, while Jerry is the face of the content produced.
Tom and Jerry have profited from the content that they have produced together. In fact, they share profits on a 50/50 basis, and have each earned over $100k from their work. They have shared their expenses as well on a 50/50 basis. Between Tom and Jerry, it is generally understood that they both share a "say" in how the videos will be created, produced, marketed and monetized, even if they each take the lead in these areas. Tom and Jerry have not formally organized this arrangement.
On 5/27/19, Tom and Jerry created a video that was offensive to the Native American community. The Native American Society, an organization who fights for Native American rights have now sued Jerry since he appears, to them, to be responsible for the offensive content. Jerry filed a crossclaim against Tom arguing that Tom and he were in a partnership so Tom should be included in the lawsuit. Tom and Jerry do not have a written partnership agreement.
• Will the Court deem Tom and Jerry to have a partnership? Why yes or Why not? Please explain your conclusion(s) by analyzing the applicable standard(s), if any.
• Solely for this question and without influencing any other questions/answers, please assume these additional facts: Tom and Jerry have a joint bank account. They have $500.00 in their operating account. However, they have issued a check for an expense for $1,000.00. They do not have sufficient money in their account to pay out the $1,000.00 check.
o How will the bank respond once the check for $1,000.00 is tendered for cash? What important detail is missing from this scenario? Explain.