Harper v. Raymond , 16 Bosw. 29 ( 1858 )

By the Court ^*—Hoffmah, J.

—The parties to the original association, in the sixth article, contemplate and allow of a sale of a share or. shares; but stipulate and direct that such sale shall not constitute the purchaser a partner. They intend, also, that such a sale shall not work a diss olution of the association. They contemplate a subsequent allotment of profits to the vendor in such sale. The purchaser, being registered and getting his certificate, could demand and receive the profits declared as belonging to his vendor, by getting a power of attorney, or other authority for that purpose, from him. In fact, it seems that such vendor was to be still regarded as a partner for management. At least, he is not excluded. Upon a dissolution, the purchaser would succeed fully to all his Vendor’s rights and interests.

The case is, in this particular, very similar to that of Totam a. Williams (3 Hare, 347). The leading principle in each case is the prevention of the intrusion of a new partner, without the concurrence of all, and the guarding against the dissolution being produced by the transfer of any party’s share. Neither his caprice nor his misfortunes are to produce this result.

As between Fletcher Harper, Jr., and Fletcher Harper, the instrument of the 29th day of July, 1855, transferred the whole stock, and every right, interest, or benefit which the ownership of the stock on that day conferred upon Fletcher Harper, Jr. The right to the future dividend passed from the latter, and vested in Fletcher Harper, he being the owner when the dividend was declared. This right followed the title to the corpus, as between these parties.

As between Fletcher Harper and the association, the purchase not having been tendered to the latter, nor assented to by them, Harper did not become a partner. He could not be intruded upon the association as such. He could not insist upon the future profits being declared to him, credited to him, or paid to him as purchaser. Fletcher Harper, Jr., was not, however, dispossessed of a nominal ownership, nor was a dissolution worked by his assignment. The profits would be declared as payable to him on the thirty shares,, and a power of attorney would enable this plaintiff, Fletcher Harper, to obtain them.

But on or about the said 29th of July, Fletcher Harper transferred back to Fletcher Harper, Jr., one share of the thirty. The latter became then reinvested with the one thirtieth part of such stock, and when the dividend was declared, became entitled to one thirtieth of the amount.

But the dissolution of the association, or partnership, on the 29th day of January, 1856, abrogated the sixth article of the agreement; superseding, of course, all the motives and reasons for framing or continuing it. Baymond and Wesley became agents and trustees to conduct the establishment, until an advantageous disposition could be made, and thus a great loss be averted.

The consequence of this was, that the right of Fletcher Harper was no longer embarrassed, or qualified by the influence of ■ the articles. It was entire and absolute; and I cannot doubt that, on the 30th day of January, he was entitled to the dividend in question.

Then, on the 30th day of January, Fletcher Harper, through his authorized attorney, Bangs, enters into the contract with Wesley contained in the instruments of that date, and carries such contract into effect, by executing and delivering the assignment of January 31.

After a careful consideration of these instruments, we have concluded that the right to this dividend did not pass to Wesley under them.

They may, indeed, be considered together; but if the last in date, the formal assignment, is unequivocal, it must control the question. If the preceding papers did clearly import a different meaning, and produce a different result, they would be superseded by the last and decisive instrument, as the true indication of the parties’ ultimate intent. But if the first papers, being the heads of the agreement, may, when fairly interpreted, be made consistent with the final instrument, there can then no longer be . room for doubt.

How the instrument of the 31st day of January, 1856, is a transfer of the stock, the corpus, and all future benefits a/nd dividends thereof. Whatever, then, should thereafter spring from the stock, in any form of benefit or dividend, was to pass. It is a strong exclusion of any profit or dividend which then existed, and had been separated and distinguished from the stock itself.

I admit, that if the instruments of the 30th day of January afforded the sole ground of decision, the better construction would be, that the previous dividend of December 31 passed under them. A transfer of the stock, and all right and interest therein, would, I think, be sufficient for this purpose.

Yet it seems to me impossible to deny, that thgse instruments are consistent, in their language, with an intent to exclude such previous dividend, and that intent is disclosed and contained in the actual assignment of the 31st day of January.

I consider the assignment of the 1st day of February, 1856, from Fletcher Harper, Jr., to the plaintiff, as totally ineffectual and inoperative as to twenty-nine parts of the dividend. If it could have any operation—that is, if Fletcher Harper, Jr., had a right to this dividend, which it professes to transfer—then, beyond doubt, that right would have gone to Wesley, under the papers of January 30. Fletcher Harper, Jr., agreed to sell every right and interest he possessed in or to the stock. There was no samtilla of interest in him, except connected with his dividend, and if that was in him, it passed to Wesley, or the language was nugatory. But the view I have taken shows that there was nothing in him, as to twenty-nine shares and so much of dividend. All had gone to the plaintiff, under the transfer of July, 1855.

Then one thirtieth part, and one share, would have gone, by force of the better construction of the papers of the 30th of January, to Wesley. His full acknowledgment, however, and receipt of the 31st, prove that this was not the intention, and hence the paper of the 2d of February operates as to one share.

Another question is raised, under the fifth point of the defendants, connected with the tenth point of the plaintiff. It relates to the point, whether the case does not enable the court to decide, fully and finally, every matter connected with the partnership between these parties. Of this we are entirely satisfied. The partnership, as far as concerns the plaintiff, is wholly dissolved ; and, except as to this isolated sum, and the question of reduction for the rent, there is nothing which shows the least ground of claim, which can require an account.

The result is, that the plaintiff is entitled to the three thousand dollars, after deducting his three tenths of the rent, or $1230. We understand the parties not to differ as to this amount; or, at any rate, that they would adjust this deduction among themselves.

Judgment accordingly.

* Present, Hoffman, Slosson, and Pierrepont, JJ.