156 Mass. 252 | Mass. | 1892
This is a bill for the dissolution of a partnership and an account. The case comes before us on exceptions to the master’s report on the question whether the defendant is entitled to an allowance of three hundred thirty-three dollars and thirty-three cents monthly, after June 12, 1889, at which time he became ill, and wholly ceased to render services to the firm. The question was argued as if it depended on the date of the dissolution of the firm, but really it depends on the construction of the articles of copartnership. By the fourth article the defendant “ shall be allowed to draw three hundred thirty-three dollars monthly, as payment for his services; if the profits are not sufficient, the same to be paid from the principal; and if the principal be not sufficient, by said Kinney.” In the opinion of a majority of the court this sum was to be paid as quid pro quo, — for services actually rendered, and if no services were rendered, the payment was not to be made. The defendant’s interest as partner was looked out for in the fifth article, which reads, “ All the profits of said business, after deducting all expenses and losses, the interest on said sum of fifteen thousand dollars capital,” contributed by Kinney, “ and the salary paid to said Maher, shall be divided between said partners as follows, viz.: to said Kinney three fourths, and to said Maher one fourth.” It will be seen that Maher’s salary, like the interest on Kinney’s capital, is treated as an expense of the business necessarily incurred, and to be paid before profits can be divided. The words “ payment,” “ salary,” and “ for his services,” and the personal liability of Kinney, seem to us as inconsistent with the notion that Maher was to be paid for Ms services if he did not render them, as the stipulation for interest is with Kinney’s receiving that without advancing the capital.
Decree accordingly.