Gorman v. Kells , 10 Teiss. 40 ( 1912 )

His Honor,

EMILE CQDCHAUX,

rendered the opinion of the Court as follows:

Desiring to secure the services of a practitioner- who would assume charge of the- orthodontic-department of-his practice, defendant formed a special- partnership fora term of years with plaintiff on-the terms -that are disclosed ip, the following, extracts from two letters, that he., addressed to plaintiff:

• “The proposition I will make you is a' guarantee of $2000 the first year and you are to receive 50% of all sums' collected on your work. Should ■ it exceed-$4000 the first year, .you will'receive the .additional percentage, whatever it is,

‘ ‘ The deal is closed on the lines of the. two letters I wrote you, except' that I am to guarantee you $4000 for the first two years instead of $2000 for the first year as• originally proposed.’.’

The partnership began on October 1st, 1907, and was dissolved by mutual consent on October 30th, 1909, that is, about a month after the guarantee period had. expired. In said period Gorman was paid - the $4000 agreed upon, though the orthodontic department had earned fees aggregating hut $6,066.00, of which only $5,140.00 was collected by Kells during . the guarantee period, the balance, namely, $926.00, having been collected by him subsequent to October 1st, 1909.

. .Uy this suit Dr. Gorman seeks to recover, in addition, to the $4000 he has already been paid, one-half of this $926.00 collected after October 1st, 1909, notwithstanding that it represents fees earned for work done prior to that date, his contention-being that the partnership was Based, upon an equal division of the collections made each year,- and that' the guarantee period haviag terminated upon October 1st 1909, he was entitled to 50% of all collections thereafter made, notwithstanding that they were realized exclusively from fees earned prior to' that date.

The Court is of the opinion that the contention is not well-founded. The -singular “it,” used in the second sentence of the first paragraph quoted, cannot, as plaintiff claims, refer grammatically to the plural phrase “all sums collected on your work” in the sentence preceding, but must refer to tbe singular word “work;” and giving tbe word “it” tbis effect, it is clear that tbe contract contemplated that tbe parties were to share equally in tbe earnings of tbe partnership irrespective of when these earnings were collected, tbe plaintiff being guaranteed $'4000 for tbe first two years, and tbe defendant assuming tbe risk that tbe earnings of these two years would suffice to reimburse him tbe amount paid under tbe guarantee.

Opinion and decree, November 25, 1912.

Nor do we think that defendant’s subsequent letter to plaintiff wherein, in referring to tbe partnership agreement then existing, be states that after tbe first two years, “you will receive in full, your share of your collections,” is opposed to tbis construction. Tbe word “share” is used in a broad and comprehensive sense and tbe phrase means that plaintiff was to receive such portion of tbe collections as be would- be entitled- to under tbe contract. If “share” was intended to mean “one-half,” tbe latter word would naturally have been employed to express that intention and meaning.

To adopt plaintiff’s construction of tbe contract would moreover involve tbe destruction of that mutuality or equality which is presumed to exist in all agreements;' for then tbe defendant Kells, who bad exclusive charge of all collections, could have so manipulated tbe time of making these collections, as to deprive plaintiff of bis just share of tbe earnings of tbe partnership.

The judgment of tbe lower Court is based upon tbe view which we presently adopt and its judgment is accordingly affirmed.

Judgment affirmed.