Magilton v. Stevenson, 173 Pa. 560

Magilton v. Stevenson

173 Pa. 560 | Pa. | 1896

Opinion by

Mr. Justice Fell,

The first contention of the appellant is that the decree in this case should not have been entered, ás the partnership affairs had not been settled and the plaintiff’s loss ascertained. The partnership was formed for the single purpose of constructing waterworks in Mayfield, Ky. The only contribution of capital was that made by the plaintiff. The land on which the works were to have been constructed had been transferred and the, ■enterprise abandoned, and the business was a total failure. The receiver was unable to obtain a bid for the few articles of personal property found on the premises, and nothing of value •came into his possession. The report of the learned master that the remaining property of the partnership was “ practically worthless,” as explained by the testimony and other parts of his report, is in effect a finding that they were worthless. There were no assets, no accounts to settle, and nothing remained but to adjust the equities between the parties.

The partnership agreement provides that “the profits and losses are to be shared equally by the partners, each being entitled to one fourth of the profits and to be liable for one fourth of the losses; provided however that the said Magilton shall in no event be put to a loss more than $1,250, and the balance shall be made up, and paid to him in case of greater loss, by the other partners.” The master held that the liability of the defendants to pay the loss of the plaintiff in excess of $1,250 was a joint and several liability. It is conceded that the finding of the master on this point would be correct if the parties •stood in the relation of strangers, but it is contended that in view of their partnership relation the proviso read in connection with the contract imposes a liability on each of the remaining partners to bear only one third of the plaintiff’s loss in excess of $1,250. The plaintiff furnished the whole cash capital, and the twofold purpose of the proviso was to fix a limit beyond which his loss should not extend, and to secure the repayment by the other partners of the balance of his contribution to the common property. This was done by providing that the balance should be paid to him by them. This is the plain meaning of the words used. In the preceding clause there is a distinct *566limitation of individual liability for tbe general losses of tbe business, and tbe omission of tbis limitation from tbe proviso is significant, and indicates an intention that each should be bable for tbe whole in tbe event of tbe failure of tbe others to pay their shares. As tbe partnership bad ended, and tbe defendants had refused after demand to adjust tbe accounts in accordance with tbe agreement, we see no error in tbe allowance of interest.

Tbe decree is affirmed at tbe cost of tbe appellant.