Dumont v. Ruepprecht , 38 Ala. 175 ( 1861 )

R. W. WALKER, J.

Much of the controversy in this case ¡turns upon the construction to be given to the articles of partnership; and the most material questions presented b.yfthe ¡.record, w'ill be disposed of, when the respective ¡¡rights and duties of the parties under the articles are ascertained.

By their agreement, -these .parties formed a partnership, ■one-fourth of the net profits of which was to belong to Ruepprecht; and it was stipulated, that if Ruepprecht’s share of the net profits should not amount to $3,000 at the close of each year, Dumont was to jgay Yarn such sum as might be required to make up the amount of $3,000. It is too clear for dispute, that by this contract Dumont guarantied that Ruepprecht should receive in any event $3,000. This was the minimum -sum. If one-fourth of -the .net profits exceeded that sum, he was entitled -to -the excess; but, if his stipulated share .of the profits for ¡any year did not reach that amount, or if no profits were realized, Dumont was, in either case, personally bound to pay him that sum. It appears that 119 profits were ¡realized during the second year? and according .to -the agreement Dumont became .personally liable to pay Ruepprecht $3,000. Unless, therefore, there was something in the conduct-of the-latter which deprived him of that right, the fact that he credited himself with the sum of $3,000 on the books of the firm, for the .second year, forms no ground of complaint.

It is shown-that Ruepprecht’s share of the profits of the first year was $6,466-01 ;~that during that year he drew out $3,376 28 f that during the second year he drew out $2,994 10', and that during the portion of the third year that he continued in charge of the business, he drew out $1,724 63. The right' of Ruepprecht to draw out more than $200 pen month, and the question whether his share of the profits of the first year, beyond $200 per month, was, as between the parties, liable to the payment of the losses of the second year, may be considered together.

The stipulation that, if Kueppreclit’s share of the profits did not amount to-$3,000 at the dose of each year, Dumont was to pay him such sum as might be required to make up that amount, and'the clause which-provides that the books shall be annually balanced, and a balance-sheet made out and signed by each partner,- show two things — -first, that, as between the parties, Ruepprecht was to bear no part of the losses of any year, except so far as they might reduce his share of the profits of that year-to $3,000 f and, second, that each year’s business was to stand by itself, and be closed by itself. Each partner had, by the articles, the privilege of investing in the stock of the concern a capital not exceeding $1-0,000, — the sum so-invested to bear interest to the credit of the partner putting ihim; and neither partner was to be at liberty to withdraw any part of the capital thus invested, without giving .his co-partner notice, and obtaining his-consent to the withdrawal. The articles do not, as it seems- to u% require the partners to let their respective shares of the profits of any one year remain in its business for the succeeding year. • On the contrary, we think that, at the close of each year, eaeh partner became entitled to his share of the- profits of that year; as his private property, to be disposed of as he might please. He was not bound to invest it as so much capital in the stock of-the concern. If he did so-iavest it, he was entitled to interest upon it. But the mere fact that Ruepprecht suf- - fered-a portion .of. his-share of the profits of the first-yearc to-remain to Ms credit on the books oí the firm, without drawing interest, was not an investment of that amount in the capital-stock of the concern, but a.mere deposit of so much money, to be subject to his order, and-to be drawn out when he might -choose. The firm was his debtor to that amount, and, as between .the partners,-.this sum was not liable for the losses of .the succeeding,year.

The articles- provided, -that each,partner should be at liberty, from time to time, “to draw out of the moneys of the partnership” any sum,.not exceeding $200, for his own private use every month. This clause cannot be construed as prohibiting the partners from drawing out tbe respective .shares -of profits which, at tbe close of each year, might stand to their credit on the books of the firm. The balances, thus ascertained, were not “tbe moneys of tbe partnership,” but tbe private property of the partners respectively. .The prohibition has reference solely to the funds of the firm in hand before the result of the current year’s business is .settled, and it cannot be applied to the balances of profits which, on the annual .settlements provided ..for, might be found .due to each partner. These ascertained balances became private property ; and if they were simply left with the firm, but not invested as capital, they are to be held as .money loaned the firm by the partner, and not as ‘money oí the partnership.’

.It appears that Ruepprecht did not draw out more than .$200 per mouth.,till the result of the first year’s business was known. After that he drew more; but he did not draw out during -that year as much as his share of the profits. Independent oí ,this, we think, it is too late for Mr-Dumont to complain-that Mr. Ruepprecht drew out more than $200 per month during,the first,year. The balance-sheet of that year’s business.was made out on the 30th September, 1857, and forwarded to Mr. Dumont. That balance-sheet .showed that the share of profits to which Ruepprecht was entitled was $6,466, and that the amount which stood to his credit on the books of the firm at the close of the year - was $3,089 73. From this it was apparent that Rueppreclit must have drawn out $3,376'28 daring that year. Though thus¡ notified that Ruepprecht had drawn out more than $200 per month during the first year, Dumont made no eomplaint on that account for more than twelve months; and-we think it is now too late to insist upon it.

The sums drawn out by Ruepprecht during tbe second year amount, in the‘aggregate,'to $2-,994 10; - whereas the balance of profüsálue him on-account of the first year's business was -$3,0-89' 73. This- -balance, we have seen, he liad a right to draw, when, and imwhat sum he-chose. The firm mademo profits during the second year; 'and according fo’tbe articles Dumont was bound to pay Ruepprecht at the end -of that year $8',G0Q. This amount, added to the unexpended balance of -the first year’s profits, ($95 63,) left to his credit 'at the beginning of tire third year $3,095 -63. During the third year; R-uepprefcht drew - oiit but f 1,724 66; so' that" he was -not,- at any 'time during the second or third year, equal'in 'his drafts to tire amount due him at the close of the preceding year.

2. Y/hat we have said "‘disposes of the controversy between the parties," so far-as it relates to the construction to be given- to the articles-of partnership. -All the other questions- -presented --byH-tbe record arise out of certain charges of misconduct and violation -of duty, made by the complainant against the defendant. The first specification we shall consider separately, and pass it by for tbe present. We do not deem it necessary to go into a detailed discussion of the other charges, but content -ourselves with saying in reference to them, that, after a careful examination, of the evidence, we think that no case of misconduct, or gross neglect, by the defendant, resulting in injury to the firm;- has -been made out.

The first specification relates to a loan-of $3,000 of tbe money .of the firm by Ruepprecht to "Magee & Cluis. In thus lending the money of the firm, Ruepprecht was guilty of a breach-of the -articles of partnership. When a dissolution.-is--decreed-for- such a cause, the-eourt may declare at what date the contract of partnership shall be at an end. Durben v. Barber, 14 Ohio, 315; Johnston v. Fogg & Vanderslice, 27 Ala. 432. It is now insisted, that the dissolution in this case should be made to date back to the 12th March, 1857, the time at which the loan was made to Ma-gee & Cluis. But it appears that, although Magee & Cluiefailed, their note has been settled by other parties, in pursuance of an arrangement for that purpose made by Ruepprecht, so that, in point of fact,.,no loss has been sustained by the firm*of J. E. Dumont & Co. It may be questioned,, whether a mere violation of the articles, without injury, would make it proper for the court to fix the date of the-dissolution at a time earlier than the abandonment of the partnership by the aggrieved party. Indeed,, none of the-cases which assert the principle, that the court may declare at what‘date the contract shall be at an end, seem to have fixed the dkte of,the dissolution at. a time prior to such abandonment, ancfc notice thereof to the offending partner.

In the present case, we do not perceive that the action of the chancellor, in regard t© the date of the dissolution, affords the appellant any just cause of complaint. All the profits that were made by the firm, were made during the first year j and this loan of the firm money was not made until near the close of the business season, when most of the profits had been realized. Of bis- share of the profits which accrued prior -to the date of the loan, Rueppreclit would noti'be deprived by a decree fixing, that as the time of tire dissolution. The only effect oí such a modification of the decree would'-'be to deprive the defendant of the annual allowance of ;$3,000, to which, under the articles, he was entitled after . the first,year. But it is shown that Rueppreclit conducted the business of. the concern, devoting his whole time thereto, from the date of the loan, until he was excluded from any.;further interference with the affairs of .the firm-by the complainant* in January, 1S59. For the services rendered by him .during" this period, a court of equity, supposing that :the dissolution should relato back to March, 1857, would not refuse him just coinspensati'on; and, on the facts disclosed, we cannot say that $3,000'¡per annum would be too large an allowance for such services. Por these reasons, we are not disposed to disturb this feature of the decree.

On the whole,-,our opinion is, that the appellant (Dumont) .has failed to show any reversible error, and the decree must be affirmed.-

On -the suggestion of the counsel for Ruepprecht, the appeal taken by Mm is dismissed, at his costs.