Langdon v. Hurdle , 15 N.C. App. 158 ( 1972 )

189 S.E.2d 517 (1972)

Helen Bennett LANGDON, Executrix of the Estate of Dr. Benjamin Bruce Langdon, Deceased,
v.
Dr. Thomas Gray HURDLE and Dr. Charles A. Hoffman, Jr.

No. 7212DC310.

Court of Appeals of North Carolina.

June 28, 1972.

J. Duane Gilliam, Fayetteville, for plaintiff appellee.

Williford, Person & Canady, by N. H. Person, Fayetteville, for defendants appellants.

BRITT, Judge.

Appellant contends that the court erred in granting summary judgment for plaintiff that defendants are personally liable to plaintiff before there has been an adjudication that the assets of the partnership of which plaintiff is a creditor are exhausted. We hold that the court did not err.

First, we consider the authority of the trial court to make the adjudication set forth in the judgment which, in effect, is a declaratory judgment. G.S. § 1A-1, Rule 2, provides that there shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action. G.S. § 1-254 (a part of the Declaratory Judgment Act) provides that "(a)ny person interested under a . . . written contract. . . may have determined any question of construction or validity arising under the . . . contract . . . and obtain a declaration of rights, status, or other legal relations thereunder." It is not error if an action instituted under the act fails to make specific reference to the statute in the complaint; the facts alleged determined the nature of the relief to be granted. Little v. Wachovia Bank & Trust Co., 252 N.C. 229, 113 S.E.2d 689 (1960). All pleadings shall be so construed as to do substantial justice. G.S. § 1A-1, Rule 8(f). We think the court had authority to make the adjudication challenged.

Although the partnership formed between plaintiff's testate and defendants is involved in this action, we are dealing primarily with the partnership agreement entered into between the three original parties, as modified by plaintiff and defendants. When the original articles of partnership in force at the death of any partner make provision for the settlement of the deceased partner's interest in the partnership, and for a disposition thereof different from that provided for in Chapter 59 of our General Statutes, the interest of such deceased partner in the partnership shall be settled and disposed of in accordance with the provisions of the articles of partnership. G.S. § 59-84. Therefore, in this case we look primarily to the partnership agreement for the answer to the question posed.

Persons sui juris have a right to make any contract not contrary to law or public policy. 2 Strong, N.C. Index 2d, Contracts, § 1, p. 292.

We do not think Article 11 of the partnership agreement quoted above contemplated a dissolution of the partnership as to all parties on the death or retirement of one of them. To the contrary it appears to contemplate that the two surviving partners would "carry on," vested with complete title to partnership assets, but with the obligation to pay the retiring partner or the estate of the deceased partner a determinable amount. We think the actions of defendants following the death of plaintiff's testate support the interpretation stated. Not only did the defendants, as surviving partners, proceed to continue the partnership for some fifteen months following testate's death, but soon after his death they agreed with plaintiff that she was entitled to receive from them the sum of $70,456.20. Plaintiff's position is made stronger by the fact that defendants requested, and she agreed, that they be allowed to pay said amount in sixty equal monthly installments, commencing in June 1970 rather than in five annual installments as provided by the agreement, and also the fact that defendants made the monthly payments until they severed professional relations.

In the affidavit of appellant's attorney presented at the hearing on the motions for summary judgment we find: "That the defendant Hoffman admits that he and his co-defendant Hurdle are jointly and severally liable as the surviving partners of the partnership known as Drs. Langdon, Hurdle and Hoffman payable in 60 consecutive monthly installments of $1,174.24 commencing June 1, 1970 . . ." After specifically agreeing that they were jointly and severally liable, and agreeing to pay plaintiff "in 60 consecutive monthly installments of $1,174.24 commencing June 1, 1970," how can defendants or either of them now contend that plaintiff's receipt of said payments are subject to a dissolution of the partnership between defendants, a marshaling of assets of the partnership and the exhausting of said assets?

After agreeing to pay plaintiff a specified amount monthly, commencing June 1, 1970, we do not think there is any merit in appellant's contention that plaintiff's receipt of the sums due her shall be delayed or otherwise affected while differences between defendants are determined.

The judgment appealed from is

Affirmed.

MALLARD, C.J., and CAMPBELL, J., concur.