Farrell v. Young

26 Pa. Super. 135 | Pa. Super. Ct. | 1904

Opinion by

Henderson, J.,

The agreement of November 15, 1899, was not only a dissolution of the firm, but a transfer and sale by the plaintiff to the defendant of the former’s interest in the business, good will and property of the firm, excepting, however, plaintiff’s interest in the outstanding accounts due the firm, from which accounts were excluded accounts due the firm for eighteen road machines theretofore sold, settlement for which had not then been made. The plaintiff transferred to the defendant his interest in these accounts and the defendant agreed to pay therefor to the plaintiff on or before April 1,1900, one third of the total profit from the sale of the machines, less the sum of $24.00. It is for his share of the profits on these machines that this action was brought by the plaintiff.

In view of the relation of the parties disclosed by the contract and the evidence presented at the trial, no question of the entirety of the contract arises. The action is upon an undertaking of the defendant for a sum easily determinable, payable at a time fixed in the contract. The plaintiff sold all his interest in the firm except in -the uncollected accounts other than the road machine accounts, for a price agreed upon and which the defendant undertook to pay. The principal part of the consideration has been paid and this action is for the balance. As to the business, good will, property and road machine accounts, there was a clear sale by the plaintiff to the defendant and an express undertaking of the latter to pay therefor.

The promise upon which the action was brought does not involve the settlement of the partnership business. It expresses an undertaking between two of the partners and creates individual rights and liabilities between them. That payment of the' consideration named in such an agreement may be enforced in an action in assumpsit is clearly shown in Van Amringe v. Ellmaker, 4 Pa. 281. Where one sells his interest in the partnership to another partner he may maintain an action for the price: Klase v. Bright, 71 Pa. 186; Beale v. Jennings, 129 Pa. 619; Draucker v. Arick, 161 Pa. 357.

There, can be no doubt of the fact that the parties separated the machine accounts from any other business and that the defendant agreed to pay the plaintiff his share of their value. The fact that the specific sum to be paid is not mentioned in the contract does not defeat the plaintiff’s action. It is admitted that the amounts due on these contracts were all collected by the defendant and the profits could easily be determined. The instruction of the court upon the subject was correct.

It was alleged by the plaintiff that the $24.00 specified in the agreement was fixed as his share of the expenses of collection, etc. The case was properly submitted to the jury as to the set-off claimed and it was the province of the jury to determine the amount due.

The assignments of error are all overruled and the judgment affirmed.