Gray v. Hamil

82 Ga. 375 | Ga. | 1889

Bleckley, Chief Justice.

As to matters of practice, taking the whole record together, with the explanations given therein by the presiding judge, we are unable to discover any error; and as to the merits, we think there was evidence which justified the jury in arriving at .a conclusion different from that which the auditor reached. This leaves, as the controlling question of the whole case, one matter of law only, viz. whether, under the facts proved, an agreement was obligatory, made by one of the partners, J. R. Hamil, to allow the other, A. J. Hamil, a fixed compensation, to wit, $80 per month for seventeen months, for services rendered by the latter whilst the former was incapacitated to do his part as a member of the firm, his incapacity (as might well be inferred from the evidence) being a voluntary one, brought on by him during the existence of the partnership through the excessive use of stimulants.

The agreement was made after the dissolution, but before the business was entirely wound up and before the assets had all been divided. The general rule, no doubt, is, that a partner is entitled to nothing extra for any inequality of service rendered by him as compared with that rendered by his copartner. The authorities to this effect are so numerous and so uniform that they need not be cited.' It is equally clear that an express agreement made by the partners with each other, either in the partnership articles or upon a valid consideration outside of them, for such allowance, can be enforced. The ultimate question, therefore, is, whether there was such consideration for the agreement in the present case. That the circumstances proved raised a strong moral obligation upon the disabled partner, his disability being voluntarily contracted, to pay for services which he ought to have rendered, but which his copartner rendered for him, admits of scarcely any doubt. According to the common law as now generally understood and administered, such an obligation would not suffice as a consideration for an executory promise. Chitty Contr. (11 Am. Ed.), 52 et seq.; Wharton Contr. §§512, 514; Bishop Contr. §44; Hare Contr. 262 et seq.-, Lamphigh vs. Brathwaite, 1 Smith Lead. Cas. 151, notes; 3 Am. & Eng. Encyc. of L. 840.. Our code, however, (§2741) expressly recognizes a. •strong moral obligation as a consideration for a contract; and we see no reason for confining this to executed contracts, especially in a case of such strong natural equity as the present. Parrott vs. Johnson, 61 Ga. 475 (3). Taking the evidence on this subject as' true, the parties must have had their attention directed deliberately and minutely to the questions both of the right to and the exact amount of the compensation. They thus settled for themselves the precise measure of inequality between them in the distribution of the assets thereafter to be completed, and we think with the court below, that such an adjustment of their respective equities made by themselves should be left to stand. Though courts will not undertake to equalize partners with reference to the personal services rendered by them respectively in conducting the firm business, there is no reason why the parties cannot and should not do it by their own voluntary agreement, whether made before or after the services are rendered. If delayed till afterwards, the agreement should not be enforced unless manifestly just and equitable; but if .manifest justice and equity will not generate a strong moral obligation, such as the code comtemplates when 'treating of a good consideration for a contract, we ..know not what would.

We find no error for which there ought to be a new -.'fifial.

.Judgment affirmed;