36 Misc. 150 | N.Y. App. Term. | 1901
This action was brought upon a written agreement made between the defendant and one Tice, the plaintiff’s assignor. The testimony discloses the following facts.
Prior to January 31, 1900, Tice and the defendant were co-partners engaged in the business of custom house brokers. Circumstances necessitated the dissolution of such partnership, and the agreement above mentioned was made and entered into. So much of that agreement as is material to the determination of this action is as follows: “I. That the said firm of Tice & Lynch be dissolved upon January 31st, 1900, midnight, and that the business of closing and liquidating the business of said firm of Tice & Lynch shall be conducted by both of the said parties hereto at No. 45 William Street, Borough of Manhattan, N. Y. City the present office of the said firm, said liquidating to be prosecuted and closed with all diligence and on or before March 1st, 1900. II. The said George W. Tice, party of the first part, for and in consideration of the sum of two thousand dollars to be paid to him by the said Franklin Lynch, party of the second part on or before March 1st, 1900, hereby agrees to permit the said Franklin Lynch to continue the use of his proposed business of custom house broker and the firm name of Tice & Lynch, and to sell, assign, transfer and set over to said Lynch, the good will of the said business, and the said Lynch hereby agrees to pay the said sum of $2,000 to said George W. Tice on or before March 1st, 1900 for the good will of the said present firm of Tice & Lynch as herein in this section H, provided, which sum shall be over and above and in addition to the share of the property and the net profits arising from the dissolution of the said business and apportioned to said Tice as provided by section I of this agreement.”
On the 2d day of April, 1900, Tice assigned his claim to the $2,000 under this agreement to this plaintiff. The plaintiff began this action on the 8th day of June, 1900, setting forth in his complaint that portion of the dissolution agreement only, which called for the payment of the $2,000. The defendant in his answer set forth the provisions of the whole instrument, denied that Tice had performed on his part thereunder, averred that the liquidation had proceeded under the said agreement and that it had been ascertained that said Tice had received from the net profits of said co-partnership business upwards of $4,769 in excess of his share, which excess was due upon such liquidation and as
Judging the contract in the case at bar by this test, it will be seen that, the subject-matter was all relating to the partnership business. It was an executory contract, mutual and dependent in its terms, calling upon each party to perform at the same time certain acts for the benefit of each other. It was entire
It is not to be assumed that it was the intent of the partners to provide by the dissolution agreement, that upon the day the exact situation of the affairs of the partnership business was ascertained, Lynch should be required to pay to Tice the sum of $2,000, without regard to whether or not Tice had received from the net profits and assets of the firm, a sum in excess of his just proportion. Such a construction would be strained, unjust and inequitable. The good-will of a business is part of its assets and may be sold as such. It is undisputed that at the time of the trial there was, and still is a suit pending in the Supreme Court between Tice and Lynch for an accounting and liquidation which should be done by March 1, 1900, and the meaning and intent of the parties to that agreement evidently was that on that day, when the exact amount of the “ net profits ” should have been ascertained and each share apportioned according to the provisions of the said agreement Tice should be credited and Lynch should be charged with the sum of $2,000 for the. business taken over by him. If the contract is entire, it can only be enforced in its entirety. 7 Am. & Eng. Ency. of Law (2d ed.), 96.
It follows then that Tice could not have maintained an action based solely upon that portion of the dissolution agreement referred to, and his assignee is in no better position than his principal. The City Court not having equity powers and jurisdiction was incompetent to try the case under the contract and the refusal of the court to dismiss the complaint upon the motion of the defendant’s attorney, made both at the close of the plaintiff’s case and at the close of the whole case and the direction to the jury to find a verdict for the plaintiff was error.
McAdam and Gildersleeve, JJ., concur.
Judgment reversed, with costs.