31 N.Y.S. 614 | N.Y. Sup. Ct. | 1894
The court held that the defendant had failed to establish his alleged counterclaim, and that he was not entitled to
“(3) On September 15, 1891, the said firm was duly dissolved by mutual consent, the particular time o£ such dissolution being determined by the defendant.” “(8) The plaintiff, Burgess, complied with the provisions of the-partnership articles requiring him to contribute such amount of capital to the firm from time to time as should be reasonably necessary for the requirements of the business of the firm, and, duly complied with all the articles' of partnership on his part.”
The plaintiff, in his complaint, alleges that the partnership was dissolved September 15, 1891, by mutual consent. The defendant, by his answer, admits that it was then dissolved, and alleges that it “was dissolved. because of the refusal of the plaintiff to contribute capital as agreed in said articles of copartnership.” June 1.0, 1891, tiie defendant wrote the plaintiff as follows:
“June 10th, 1891.
“My Dear Burgess: Yours rec’d. In talking with you the other day, I told you I thought the present copartnership expired, under its articles, on Oct. 15th. In reading them over, I find it expires on six months’ written notice. Be this as it may, I do not think we shall have any trouble in terminating it, when it appears to be to the interest of all concerned. * * *
“Yours, W. S. Badger."
So far as the record shows, this was the first that was written or said between the partners about dissolving the firm. On the 15th of June, 1891, the partnership then having existed for eight months, the plaintiff notified the defendant, in writing, that the partnership would be dissolved six months from that date. Subsequently, and on the 15th of September, 1891, the firm was dissolved. From this fact, and the other evidence, it is apparent that the dissolution, which occurred long before either partner could have compelled it, was the result of a mutual agreement. The defendant alleges in his answer that he consented to the dissolution because the plaintiff had failed to perform the second article before quoted, for which he claims $25,000 damages. The fact that the defendant made up a final statement of the affairs of the firm on the 29th of April, 1892, without preferring any claim for damages, and never having suggested such a claim until after the plaintiff refused to allow the two items in his account, is a significant one, and greatly discredits the validity of the defendant’s claim for damages. It is singular that the defendant failed to discover, or at least to complain, that the plaintiff had broken his covenant, to his damage in so large an amount, until a disagreement arose over the account. Without repeating the evidence which sustains the findings, we are of the opinion that the facts..were well founded, and that they are sustained by the evi
“(7) There was no agreement between the said partners that the defendant, Badger, should be allowed any amount for liquidating the business, and no claim was made by the defendant Badger that he should be entitled to be paid any amount for liquidating the business before the rendition of the said account, on or about April 29, 1892, and the defendant is not entitled to charge the plaintiff: with any amount for liquidating the business.”
This finding is amply sustained by the evidence. The defendant did not testify that the plaintiff at any time agreed that compensation should be made for liquidating the affairs of the firm, and the plaintiff testified that there was no such agreement. On the contrary, he testified:
“Hr. Badger said there should be no expense for collection. I offered to collect without any expense. Mr. Badger said there would be no- trouble and-no expense.”
The defendant denied that he agreed to collect without compensation, or that the plaintiff offered to liquidate the affairs of the firm without compensation. The defendant testified:
“It was finally determined between Mr. Burgess and myself to dissolve the firm on the 15th of September, 1891. The stock of goods we had on hand at that date aggregated $300,000. The outstanding accounts owing us amounted to $495,059.94. The trial balance shows that amount exactly. Mr. Burgess was here at the date of the dissolution, and talked the matter over with me. He wanted to put the. settlement of the affairs of the business into the hands of a third party, and I declined to allow that He then wanted to put it in the hands of a receiver, which I also declined.”
On his cross-examination he testified:
“There was a conversation between us on this subject of who should do-the liquidating, at my office, 105 Worth street, New York, or it might have been at lunch,—at one of those two places. I think we had several conversations on that subject. The whole subject of the matter was that he wanted to put this business into the hands of a third party to liquidate. He said a third party. He did not mention whom he wanted. I declined. Then he wanted to put it into the hands of a receiver. I declined to allow that. I told the proper place to liquidate that business was where it was carried on; that is, where I wanted it to be done,—at the former store. It was Van Bergen Co.’s store after that. He finally consented to that. I have no recollection of saying that I wanted to liquidate that business because I was going on with these accounts, and I wanted to attend to collection with the old customers. The reason 1 put forward was, I thought the business would-be liquidated better and cheaper there.”
Whether a partner is entitled to compensation for winding np or liquidating the affairs of a firm, after dissolution, has arisen (1) when a dissolution has occurred by operation of law, as by the death of a partner; and (2) when a firm has been dissolved by the agreement of the partners. In the absence of an agreement, express or implied, that a surviving partner shall be paid for winding up the affairs of a dissolved partnership, he is not entitled to compensation for such services. Johnson v. Hartshorne, 52 N. Y. 173-180; Ames v. Downing, 1 Bradf. (Sur.) 321; Denver v. Raone, 99 U. S. 355-358; Beatty v. Wray, 19 Pa. St. 516; Brown v. McFarland, 41 Pa. St 129; Tillotson v. Tillotson, 34 Conn. 335-366. Care should