Walter v. Douglas , 74 Fla. 393 ( 1917 )

Ellis, J.

This is air appeal by complaint from a decree dismissing a bill praying for an account to be stated between her and the defendant William Douglas, her former partner, upon a contract between them for a dissolution of the copartnership and against the United States Fidelity & Guaranty Company surety in a bond given by Douglas to carry out the terms of the agreement on his part to be performed.

The only matter of difference between the- parties is, whether certain moneys on deposit in a bank to the credit of the- copartnership when the contract of dissolution was entered into belongs to the defendant, or should be divided between them under the agreement of dissolution. The determination of this point involves a construction of paragraphs sis and eight of the contract.

Sarah Walter and William Douglas were copartners doing business under , the firm name of Philip Walter & Douglas. They did an insurance business in Jacksonville, Florida, that is to say the firm was the local agent for a number of Fire Insurance Companies doing business in Florida, and the General Agents for the Connecticut Fire Insurance Company in the State. On the 31st day of July, 1915, they agreed to dissolve the copartnership and entered into a written agreement to that effect. The general agency account was kept by the firm separtely from its other accounts as local agents.

At the time of the dissolution of the copartnership the assets of the firm consisted of money in bank on deposit, a balance due by the general agency account, accounts due to the firm, an automobile and office furniture.

The contract of dissolution provided, among other things, that the books of the firm should be audited, showing all uncollected premiums and other assets' of the firm, and all balances due to the Insurance Companies represented by the firm; all outstanding‘accounts due the firm should be collected, each member to give the other a bond for the faithful' performance of the agreement on his part; that all collections should be deposited daily to an account , in the bank in the firm name, and the funds disbursed to the companies a's the collections reached the sum of five hundred dollars; -that the member of the firm whose debt to the firm exceeded his partner’s should deposit the excess to their joint account in the bank; that the office' furniture should be equally divided between them; that the cost of auditing the books and advertising the dissolution should be paid from the firm assets; that if the Connecticut. Fire Insurance Company should continue its general agency with either member of the firm, that member should, within sixty days deposit to the firm’s account in bank the amount due by the General Agency Account to the firm; that the new General Agent should assume all the liabilities of the General Agency and shall be entitled to have and receive all its assets, and shall procure from the Connecticut Fire Insurance Company a release of the other member of the firm from all liability to the Insurance Company; and that after all liabilities'of the firm are paid and any money or other assets remain, they shall be equally divided between them.

Paragraphs Six and Eight of the contract are given here in full:

“6. That if the Connecticut Fire Insurance Company shall continue its general agency with either member of the firm, then the said member representing the said Connecticut Fire Insurance Company as general agent shall within sixty days from this date, deposit to the said bank account the amount, if any, which the said general agency account is found to be due to the said firm: That is, the said member so acting as general agent shall deposit to said account the difference between the accounts payable to said general agency, as its assets, and the liabilities of said general agency, and that the said members so acting as such general agent shall assume all the liabilities of the said general agency and shall be entitled to have and receive all of its assets, and that the said general agent shall procure from the said Connecticut Fire Insurance Company a release of the other member of said firm from all liability to the said Connecticut Fire Insurance Company”.

“8. That after all liabilities of said firm are paid and discharged, as hereinbefore proivded, then any moneys or other assets thereafter remaining shall be divided equally between the said members.”

It was stipulated between the parties that at the close of business on July 31, 1915, there was on deposit in the bank to the credit of the General Agency account of the firm the sum of eleven hundred and eighty-three dollars and ten cents; that there was due from various agents to the General Agency account of the firm the sum of nine thousand one hundred and sixteen dollars and ninety-three cents; that there was due from the General Agency to the Connecticut Fire Insurance Company six thousand four hundred and twenty-eight dollars and forty-one cents, and that the Local Agency of Philip Walter & Douglas owed the General Agent the sum of one thousand seven hundred and six dollars and forty-one cents, which amount was included in the amount due from various agents to the General Agency, and stated above to be ninety-one hundred and sixteen dollars and ninety-three ■ cents.

The Connecticut Fire Insurance Company continued the defendant Douglas as its General Agent in Florida.

The complainant below contended that Douglas should deposit to the account of the firm established under the agreement of dissolution the amount on deposit in bank to the credit of the General Agency account of the firm of Philip Walter & Douglas: that is to say that in arriving at the “difference between the accounts payable to said General Agency as its assets, and the liabilities of said General Agency” the amount in bank to the credit of the General Agency account should be considered as being on the debit side of the ledger, that is as an asset, as “accounts payable to said General Agency as its assets.”

The defendant contends that no account should be taken of the item whatever. His idea seemingly being that the “General Agency account” at the bank would continue as it was, and to which he would succeed as the Connecticut Insurance Company’s General Agent. This view of the case the Chancellor seemed to take, and decreed the equities to be with the defendant, and dismisscl the bill.

It is conceded possibly that the money on deposit to the credit of the General Agency account of the firm belonged to the copartnership; that it was an asset of the firm; that if neither member of the firm had been appointed or continued as General Agent of the Connecticut Fire Insurance Company, the bank account would have been equally divided between them, or which is the same thing, used to pay partnership debts.

The partnership seemed to have been an equal partnership, and the purpose of the agreement was to prescribe the method for the complete liquidation of its entire business and an equal division of its property after all debts were paid. The term “Liabilities of said General Agency” as used- in the sixth paragraph of the agreement is perfectly clear. It meant the debts, pecuniary obligations of the firm in its General Agency business. These liabilities were first to be taken into account and paid by the firm, that is to say, with the firm’s assets contained first in the General Agency account, and if those were not sufficient, then with other assets of the firm. After which the member succeeding to the General Agency should transfer to the account, of the firm what if anything was left over in money in the General Agency account. Now if the liabilities of the General Agency were paid by the firm with its assets, irrespective, of the funds to the credit in bank of the General Agency, account and that account was to become the property of the member succeeding to the General Agency of the Connecticut Fire Insurance Company, where was the consideration for the transfer by Sarah Walter to her quondam partner Douglas, of her interest in the General Agency bank account? Which interest-amounted to five hundred and ninety-one dollars and fifty-five cents. It was not the intention of the agreement surely that one party to it should present to the other the former’s half interest in the bank account in the event the latter should be fortunate enough to secure the General Agency. Such quixotic generosity should by clear and unmistakable terms be made to appear as the intention of the parties to an agreement.

Paragraph eight of the agreement would seem to clear any doubt as to the parties’ intention created by paragraph six. By the latter paragraph all liabilities of the firm were to be paid, whatever assets were left were to be divided equally. The bank account Was an asset of the firm. Even if it should be ignored under paragraph six as the 'defendant insists, the account would still be an asset of the firm to be divided under paragraph eight.

We have carefully read the briefs of counsel, but we cannot agree that so obvious an intention as that entertained by the parties to this agreement and expressed therein can be frittered away by fine distinctions as to the difference in meaning between the-phrases “Accounts payable” and “Accounts payable to,” or whether a bonk account is “money” or an “account payable.” In this case it was an asset of the copartnership and, as we read the agreement, was intended by the copartners to be equally divided between them. In this view of the case the decree of the Chancellor was erroneous and should be reversed.

It is so ordered.

Browne, C. J., and Taylor, Whitfield and West, J. J., concur.