25 S.W. 415 | Tex. | 1894
The defendant in error brought this suit against the plaintiff in error to recover one-third of the expenses of managing and maintaining a cattle ranch. The plaintiff below claimed that the expenditures were made by him in pursuance of a contract of partnership entered into between him and the defendant. The case was tried without a jury, and judgment was given for the plaintiff. This judgment was affirmed by the Court of Civil Appeals.
In the findings filed by the trial judge, and adopted by the Court of Civil Appeals, the following facts appear: On the 1st day of June, 1883, the plaintiff, the defendant, and one T.S. McClelland executed articles of partnership, as follows:
"The State of Texas, Donley County. — Know all men by these presents, that L.H. Carhart, T.S. McClelland, and G.A. Brown, all of Donley County, Texas, have this day entered into a copartnership for the purpose of procuring, fencing, stocking, and operating a stock ranch in Donley County, Texas. and embracing the following territory. [Here follows the description, which is omitted.] The style of said firm shall be Brown, McClelland Carhart, and each of said partners shall share equally and alike all costs and expenses incident to said firm business, and in all profits and losses accruing therefrom; but neither partner shall have the power to sell the interest of his copartner in said firm business without the written consent of said copartner; and should any member of the firm determine to dispose of or sell his interest in said business, the remaining partners shall have the prior right to purchase, at the price and on the same terms which might otherwise be obtained.
"All lands leased, owned, or otherwise held, or which may hereafter be procured by either member of the firm in said range, shall be transferred to the copartnership; and all annual rentals accruing thereafter on the leased lands shall be paid by the firm, and any excess of lands deeded to the firm by any member thereof shall be accounted for and reimbursements made on the basis of the costs thereof to the individual member.
"All questions pertaining to said firm business shall be determined by a majority of the members, except for the purchase of partnership stock for said ranch, which shall require the consent of all of said partners. In stocking said ranch, no one member shall, except by consent, put thereon exceeding one-third the capacity thereof, as may be determined by the firm."
In March, 1885, the plaintiff, Brown, bought the interest of McClelland in the partnership property, and soon after that purchase, as the trial court found upon conflicting testimony, plaintiff and defendant agreed to continue the partnership on the original terms — the plaintiff owning a two-thirds interest and the defendant one-third. The partnership so formed was dissolved by mutual consent on the 1st day of July, *428 1888. During the existence of the partnership the plaintiff paid out, as expenses of operating and improving the ranch and in caring for the. livestock thereon, the sum of $5750. The firm had eighteen bulls and five saddle horses in the pasture. The plaintiff kept upon the ranch during the continuance of the partnership cattle varying in number from 800 to 1200 head, which belonged to him individually. The defendant had no individual stock in the pasture, except about 100 heifers, in the year 1885. The plaintiffs at no time had stock upon the land in excess of two-thirds of the capacity of the pasture.
It also appeared in evidence as an undisputed fact, that shortly after the original partnership was formed thirty bulls and some saddle horses were bought for the firm and placed in the pasture, but that no other cattle were ever placed in the pasture on the firm account at any time during the existence of either partnership.
The court found as a matter of law, that "the firm of Brown Carhart was liable for all reasonable expenses incurred in looking after, caring for, and protecting partnership property of said firm, and the individual stock of the members of said firm placed in said pasture, not to exceed their respective interests in the capacity of said pasture;" and gave judgment accordingly. It is therefore apparent that the plaintiff has recovered in part for the expense incident to the care and management of his own cattle.
It is evident that the judgment can not stand except upon the theory that in the event the pasture was not stocked by the firm to its full capacity, each partner had the right under the terms of the contract not only to put into it his individual cattle to a limited number, but also to have them cared for and maintained at the expense of the firm.
That the parties might have made such a contract, we see no reason to doubt; and if such had been their intention as expressed in the writing, the defendant, who failed to avail himself of the benefits secured to him by the agreement, could not legally object to paying his proportionate part of the expenses incurred in the enterprise, upon the ground that the plaintiff alone had enjoyed its advantages. But in our opinion the contract in question is not fairly susceptible of the construction which is claimed for it on behalf of the plaintiff. That construction is doubtless based upon the provision which reads: "In stocking said range, no member shall, except by consent, put thereon exceeding one-third the capacity thereof, as may be determined by the firm."
But "the intention of the parties will be determined from the effect of the whole contract, regardless of special expressions." 1 Bates on Part., sec. 17.
This rule is peculiarly applicable to the articles under consideration. It is not only expressly stipulated that the parties enter into a parnership, but the leading provisions in the contract necessarily make it a partnership. *429 The parties agreed to procure, fence, stock, and operate a stock ranch; and they provide, that "each of said partners shall share equally and alike all costs and expenses incident to said firm business, and in all profits and losses accruing therefrom." These stipulations indicate that the sole purpose of the contract was to create a partnership in its simplest form; and there is no other provision which shows that such was not the paramount object.
It is clear that it was intended to form not merely a partnership in name, but also a partnership in fact and in law; that it was the purpose jointly to provide and maintain a pasture upon which cattle belonging to each of the parties individually should be kept and cared for at the common expense, and for the separate profit of the owner, is not only inconsistent with the idea of a legal partnership, but is also repugnant to the express provision in the articles, that they should share equally "in all the costs and expenses in said firm business, and in all profits and losses accruing therefrom."
The declared object of the association was not only to procure and fence the pasture, but also "to stock and operate it;" and it is clearly implied that it was to be stocked with partnership cattle, and operated for the profit of the firm.
That it was contemplated that for a time at least the pasture might not be stocked to its full capacity with partnership cattle, and that each partner should be entitled to place and keep upon it a limited number of his individual livestock, is not to be denied; but it does not follow that the expense of caring for them was to be borne by the firm. The articles provide that the partners are to bear equally the expense of the partnership business.
But it can not be held that the rearing and maintaining of individual cattle upon the ranch was a part of the business of the firm. If partnership business, then each partner would have been entitled to participate in the profits arising from it. This would seem not only a necessary consequence, but it would also secure a more equitable result than that which would flow from a construction which would enable one member to take to himself the profits of a part of the business which had been carried on at the expense of the firm. And yet neither party appears ever to have claimed the right to participate in the profits accruing from the individual cattle of the other.
The condition which led to the insertion in the articles of partnership of the particular claim in question is not difficult to discover. The parties to the original agreement evidently foresaw that, at the outset at least, the firm might be unable to stock the ranch to its full capacity, and that the surplus might be utilized by the members on their individual account. It was therefore intended that the surplus capacity not appropriated by the firm should be used for pasturing the individual cattle of *430 the members. The immediate purpose of the provision was not so much to declare this right, which seems to have been tacitly recognized, as to limit its exercise to the capacity of the ranch, and to secure to each an equal participation in the privilege. This affords a simple solution of the question.
Without this clause, the contract is barren of a word or phrase that tends to show that any right to pasture individual cattle was to be exercised. The provision does not expressly affirm that any such right should exist. It simply places a limitation upon its exercise, and thereby its existence is merely implied; and we are of opinion that the implication goes no farther than to recognize the privilege of each member of the firm to use the ranch for pasturing his own cattle, free of charge for such use, but otherwise at his own expense.
We are of opinion that the judgment of the court below is based upon an erroneous construction of the terms of the partnership, and is therefore erroneous.
The judgments of the Court of Civil Appeals and of the District Court are accordingly reversed and the cause remanded.
Reversed and remanded.
Delivered February 22, 1894.
Associate Justice BROWN not sitting.
