Wilson v. Black

Opinion by

Mb. Chief Justice Stebbett,

One of the items constituting “the sum of $2,094.11,” found by the learned master, “as the net value of the firm assets received by the defendant,” is seven hundred dollars for books, papers, maps, plans, office furniture, etc., mentioned in the first specification of error. We are unable to see how, upon a proper construction of the copartnership agreement of July 1, 1889, these articles can be regarded as firm assets. As to them, the agreement provides thus: “In the event of a dissolution of the firm, from any cause, all the personal property, books, papers, maps, plans and unexecuted orders belonging to or in the possession of such partnership shall become the property of the said first party, for the purpose of enabling said first party to continue the business, previously done by said partnership, in his own name and for his own benefit.” In the next succeeding clause of said agreement, provision is made for ascertaining the second party’s interest in the partnership, in the event of a dissolution thereof, by taking as a basis “the gross receipts from ” the rent-collecting “ department for the twelve months previous to dissolution,” etc., as therein specified.' When the firm business had been prosecuted for about six months, both' partners united in effecting a sale of their rent-collecting department for $20,000; which sum they treated as profits and divided according to their respective interests in the firm,— plaintiff receiving one third and defendant the residue. They thenceforth confined their efforts to buying and selling real estate. While the effect of disposing of the rent-collecting department of their business was to render inoperative the provision aforesaid for ascertaining plaintiff’s interest in the firm, it did not in any manner interfere with defendant’s right to the books, papers, maps, plans etc. which, under the .clause above quoted, were to become his “property” “in the event of a dissolution of the firm, from any cause.” That provision was not altered or annulled by the sale aforesaid. It was never contemplated that defendant should account for the value of the books, papers, maps, plans, etc., specified in the clause referred to. Those articles were to be used in the prosecution of the firm’s business until a dissolution took place ; and thereupon they reverted to defendant, for the purpose of enabling him “ to continue the business .... in his own name and for his own benefit.”

We are therefore of opinion that there was error in treating said articles, valued by the master at $700, as partnership assets; and the decree should be modified accordingly. As to the other items of assets, we are not prepared to say there was any error. We are also of opinion that defendant should not be required to pay more than two thirds of the costs. .The proceedings appear to have been necessary to the settlement of matters in dispute between the parties respectively, and each should therefore bear his proportionate share of the costs, etc.

Decree reversed: and it is now adjudged and decreed that, in lieu of the sum specified in said decree, the defendant pay to the plaintiff the sum of four hundred and sixty-four dollars and sixty-seven cents ($464.67), with interest from September 16,1893; and it is further ordered that the costs, including the master’s fee ($200), stenographer’s bill ($125), and costs of this appeal, be paid, one third by plaintiff and the remaining two thirds by the defendant.