Scheuer v. Wise

This is a suit brought by Mose Scheuer and Nathan Scheuer against Emil Wise, to recover the sum of $6,250, with interest.

There are four counts in the complaint, numbered 1, 2, 3, and 4. As originally filed, the complaint was composed of counts 1 and 2 and counts 3 and 4 were added by amendment. The court sustained demurrers of defendant to each and all of the counts, the plaintiff declined to plead further, and the court dismissed the case and taxed the plaintiffs with the costs. This appeal is prosecuted from that judgment, and the court's action in sustaining demurrers of defendant to counts 1, 2, 3, and 4 are four of the errors separately assigned, and the final judgment of the court, dismissing the case and taxing plaintiffs with the cost, is also assigned as error.

The appellants, plaintiffs, insist on, argue, and urge in brief only three errors — the rulings of the court in sustaining demurrers of defendant to counts 2, 3, and 4 of the complaint. We will consider and discuss only these three, because the other errors assigned, but not argued and urged in brief of appellant in this, a civil case, will be treated as waived by this court. Ala. Mid. Ry. Co. v. McDonald, 112 Ala. 216,20 So. 472; Southern Ry. Co. v. Cunningham, 112 Ala. 496,20 So. 639; Hymes v. State, 209 Ala. 91, headnote 3,95 So. 383.

Mose Scheuer and Nathan Scheuer, plaintiffs, and Emil Wise, defendant, and one A. J. Harris, were partners prior to May 1, 1922, doing business under the firm name of Scheuer, Wise Co.; on that day this firm was dissolved, and a new firm composed of only the plaintiffs was formed. The plaintiffs composing the new firm purchased all of the interest of defendant, Wise, in the business of Scheuer, Wise Co. The contract was in writing, signed by the parties, and is made an exhibit to each of the counts (2, 3, and 4) under consideration. In July, 1923, the United States government assessed the said Scheuer, Wise Co. with a federal income excess profits tax for the year 1917, amounting to $31,000. The defendant paid no part of this tax, but plaintiffs were forced to pay it in full, and they seek by this suit to recover the proportionate part thereof, one-fourth, which they claim should have been paid by defendant. These averments are contained in all of the counts 2, 3, and 4.

Count 4 further avers that plaintiffs, defendant, and Harris were, prior to the dissolution of the firm, each equally interested (one-fourth each) in its assets and equally liable for its debts or liabilities. Count 3 contains the foregoing averments in count 4, and also avers the United States government, in July, 1923, assessed the firm of Scheuer, Wise Co. with a federal income excess profits tax for the year 1917 amounting to more than $40.000, and notified said partnership of this additional assessment; thereupon the four members of that firm employed counsel for the purpose of contesting this additional assessment, executed a power of attorney authorizing the attorneys to represent each of said partners in making the contest, and the four members of that partnership agreed with the attorneys as to the amount of their compensation, and each agreed to pay his pro rata part of the attorneys' fee. On the contest this assessment was reduced from over $40,000 to $30,000, "and said partnership (Scheuer, Wise Co.) was held to be liable therefor." Notice was issued to Scheuer, Wise Co. that, unless the amount of said additional assessment was immediately paid, their property would be levied upon and sold by the government. The plaintiffs paid, after this notice, said additional assessment amounting to the sum of, to wit, $30,000. The new partnership, Scheuer Bros. Co., composed of plaintiffs, in the operation of its business after the dissolution of the firm of Scheuer, Wise Co., on May 1, 1922, "continued selling and disposing of, in the ordinary course of its business, the assets acquired from the old firm of Scheuer, Wise Co., and that on or before the month of July, 1923, they had sold or otherwise disposed of practically all of the assets of the old firm of Scheuer, Wise Co., which they acquired at the time of and by virtue of said dissolution."

This court, in Tait v. Murphy, 80 Ala. 443, 2 So. 319, wrote: "The interest of a partner is his share of the proceeds of all the partnership effects after the liabilities have been satisfied." When one partner sells his interest voluntarily to other partners in the business, for an agreed consideration, the vendees are entitled to receive such partner's share of the property "after a settlement of the partnership affairs and the payment of all the partnership debts." Am. Eng. Ency. of Law (2d Ed.) vol. 22, p. 105, headnote 2; Fields v. Brice, 108 Ala. 632,18 So. 742; Wilson v. Strobach, 59 Ala. 488.

Each of these counts under consideration avers this federal income excess profits tax was for the year 1917, that it was assessed against Scheuer, Wise Co. for that year; that it was a partnership liability; and that plaintiffs had to pay it in 1923. So it is evident from the averments this tax was a liability of Scheuer, Wise Co. when defendant sold by this contract his interest therein to the plaintiffs on May 1, 1922.

Whether these counts are subject to demurrer for plaintiffs' failure to state a cause of action against the defendant, in order to recover from him one-fourth of this tax paid by them, depends primarily on the construction of the written contract of sale and purchase between plaintiffs and defendant, which is attached as an exhibit to each of the counts under consideration.

In construing this contract, the court will look to and consider the whole instrument, so as to decide its true meaning in any and all of its parts. The court will consider the nature of the contract, "the facts and circumstances leading up to and attending its execution, the relation and condition of the parties, the nature and situation of the subject-matter, and the apparent purpose of making the contract." 13 Corp. Jur. p. 542, headnote 32; Roach v. McDonald, 187 Ala. 64, 65 So. 823; Watson v. Kirby, 112 Ala. 436, 20 So. 624.

In the first part of the contract the defendant sold to plaintiffs "all his interest in and to the business of Scheuer, Wise Co. for $51.551.43"; $17,183.81 of which was paid him by them in cash, and a note for $17,183.81, due November 1, 1922, and a note for $17,183.81, due February 1, 1923, were given him by them for the balance of the purchase price. This part of the contract clearly evidences an intent by the defendant to transfer for a valuable consideration his interest to the plaintiffs in the business, and the intent of plaintiffs to own his interest "after settlement of the partnership affairs and the payment of all the partnership debts." He sold and transferred for an agreed consideration his interest in the business to plaintiffs; and they received it subject to a settlement of the partnership affairs and the partnership debts. But this contract contains the following clause and agreement:

"It is also understood and agreed that all book accounts, notes, mortgages and other items due the firm of Scheuer, Wise Co. are to be the property of Scheuer Bros. Co. and all the debts due by the firm of Scheuer, Wise Co. for merchandise or borrowed money are to be paid by Scheuer Bros. Co.; the said E. Wise being released from all liability, as far as the parties to this contract are able to release him."

The plaintiffs by this expressly agreed to pay "all the debts due by the firm of Scheuer, Wise Co. for merchandise or borrowed money." The plaintiffs contend by this clause in the contract, "the said E. Wise being released from all liability as far as the parties to this contract are able to release him," that they contracted and intended to release the defendant only from all liability for debts due for merchandise and for borrowed money; but the defendant contends plaintiffs contracted and intended thereby to release him from all other liability of the firm of Scheuer, Wise Co.

In Cobb v. Benedict, 27 Colo. 342, 62 P. 222, we find this principle stated:

"Where one partner sells his entire interest in the assets and business of a firm to his copartners, for an agreed consideration, and nothing is said regarding the liabilities of the partnership, the presumption is that the purchasing partners, as between themselves and the one retiring, assumed such liabilities."

There is nothing in the contract or the averments of the counts showing the defendant, in the sale and transfer of his interest, impliedly or expressly agreed to pay his pro rata part of all other liabilities of the partnership or his part of this excess profits tax liability. The defendant by this written transfer did not warrant the property free from liens. He did not expressly agree to be responsible for any liability of the firm as between him and the vendees. He simply "sold all of his interest in the business" for a sum certain. He received an agreed consideration for his interest. He transferred it to the vendees without warranty. The vendees expressly agreed to pay debts for merchandise and borrowed money. After agreeing to pay these debts, it was not necessary to insert in the contract Wise would be released from "all liability" as to these debts — for merchandise and borrowed money.

So it appears to us, and we hold, the plaintiffs agreed to pay all debts of the firm for merchandise and for borrowed money; and plaintiffs contemplated and intended by this clause, "the said E. Wise being released from all liability as far as the parties to this contract are able to release him," to see that Wise was released from the payment of all other liabilities of Scheuer, Wise Co., whatever they might be. The defendant had been released from merchandise debts and borrowed money debts; and these words following, quoted above, would be useless, meaningless, unless it was the intent and purpose of their use to release Wise from all other liabilities of the partnership. "All liability" is a comprehensive term, sufficient to include any legal responsibility. 36 Corp. Jur. p. 1050.

It appears, and we hold, by this contract defendant sold to plaintiffs all of his interest in this business, except as stated therein, for an agreed consideration; the vendees received the assets and intended to and did assume all the liabilities of the partnership, and they intended to and did release defendant from all liabilities of the partnership, which included this excess profits tax for 1917. Authorities, supra. All releases in writing, whether of a debt of record or a contract under seal or otherwise, must have effect according to the intention of the parties thereto. Section 3973, Code 1907.

It is true count 3 alleges the federal government gave notice to Scheuer, Wise Co. in July, 1923, for the 1917 excess profits tax. At that time it appears from this count that practically all of the assets of the late firm had been disposed of by the vendees, plaintiffs, the new firm. Each member of the old firm, for the purpose of contesting this $40,000 assessed against the old firm, employed the same lawyers, and each agreed to pay his pro rata part of the fee to contest and reduce the assessment; each gave the attorneys authority in writing and by affidavit to represent them in this contest of this claim. The assessment was reduced by about $10,000 by the contest. This contract of Wise, defendant, with plaintiffs, did not relieve him of liability for the debts to creditors and taxes due the government by Scheuer, Wise Co., except as between defendant and plaintiffs. The plaintiffs by the contract relieved him of liabilities. First Nat. Bank v. Cheney, 114 Ala. 546, 21 So. 1002; Brannum v. Shoe Co.,117 Ala. 601, 23 So. 639.

The firm of Scheuer, Wise Co. was in existence in 1917. This conduct on the part of Wise in no manner admits his liability to pay the tax or any part thereof under his contract with plaintiffs. It may have been done by him to avoid possible individual liability on his part to the government, or possibly to meet a requirement of the rules of the department in order for plaintiffs through the late firm to contest the assessment. No fact is alleged in count 3, showing liability under his contract with plaintiffs to pay any part of this excess profits tax to plaintiffs.

It results that counts 2, 3, and 4 each fail to allege facts showing that plaintiffs have the right to recover from the defendant any part of this excess profits tax assessed against, and which was a liability of, the Scheuer, Wise Company for the year 1917, and which was paid by plaintiffs in 1923. Neither of these counts stated a cause of action against the defendant, and the demurrers of the defendant to each of these counts were properly sustained by the trial court.

The record is free from error, and the judgment is affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.