95 N.Y.S. 926 | N.Y. Sup. Ct. | 1905
On June 2,1891, the plaintiff and one Charles S. Locke entered into a written agreement whereby plaintiff agreed to advance the sum of $10,000 in cash, to be invested in the business of manufacturing, buying and selling plumbing, steam and gas-fitting materials, as part of the capital stock of the business. Locke agreed to carry on the business to the best of his ability; and it was agreed that the consideration to be paid plaintiff should be one-quarter of the net profits, instead of interest on the investment. The agreement was to continue for five years, and provision was made that upon the death of Locke or the expiration of the term of the agreement the $10,000, or so much of it as remained in the business, should be paid back to plaintiff, with the proportionate part of the profits then due and unpaid to him. Plaintiff advanced the money, and with it Locke began and carried on business, under the name of O. S. Locke. On April 16, 1892, Locke and the defendant Smith formed a co-partnership for the purpose of carrying on the same business, which was to continue for five years and be conducted under the firm name of O. S. Locke & Smith. Locke agreed to contribute to the capital of the business all of the stock on hand and other assets of the business carried on by him, valued for the purposes of the agreement at $10,000, and also the sum of $5,000 in cash, which sum .was to be paid to him by Smith for one-half interest in the good will of the business. Smith agreed to contribute $15,000 in cash to the capital of the business. It was agreed that Locke’s contribution of stock and assets was to be made “subject to the payment of the liabilities of such business” previously carried on by Locke, the valuation of $10,000 b'eing estimated as the value of said contribu
Judgment accordingly.