145 Pa. 459 | Pennsylvania Court of Common Pleas, Clarion County | 1891
Opinion,
These are appeals by complainant and' respondents, respectively, from the same decree, and will be considered together. In the course of the litigation the learned court below delivered three opinions; and as the last, accompanying the final decree, confirms the master’s report, and dismisses all exceptions, without detailed examination, it will be most convenient to refer directly to the master’s report, rather than to the opinion of the court.
The rights of the parties must be determined by the agreement of May 31, 1882. By this it appears that Graham and
Upon the construction of the agreement defendants contend, and this is the stress of the case, that it must be limited in its application to the profits of the store at Fryburg, and properties or investments clearly made out of such profits. The preamble recites the partnership in the store, and, further, that several tracts of land, etc., “have out of the profits of said business, been purchased; ” and it might be natural to expect that the agreement to follow would be confined to the subject matter thus recited as introductory. But in fact it is not. Such a sense might readily be given to it, as defendants suggest, by the word “ said ” introduced before the agreement, “that all [said] property, of every nature and kind,” etc. But the parties have not used that word. The principle of law contended for by the defendants is unquestionable, that, however general the terms of a contract, it shall be held to
The same considerations, which need not be repeated in detail, answer the further contention that the word property, in the agreement, did not include accounts, notes, and choses in action, but was limited to tangible property, if not to real estate.
We are therefore of opinion, with the learned master, that
These main principles governingthe controversy having been
The master allowed Graham’s salary up to the date of the agreement, but held that it terminated then. Complainant excepts to the allowance, because, as he contends, the salary was only to be payable on the settlement of the partnership affairs, which Graham did not make. This view, however, is not tenable. The language of the agreement is, “ In settling the affairs of said partnership, said Graham is to receive, however, for services, a salary of seven hundred and fifty dollars a year for attending to said business, to be taken out before a division,” etc. This clearly means for attending to the business in the past, not for making the settlement; and the expression “ in settling the affairs” is equivalent to “ when the affairs are settled.” On the other hand, the respondent excepts because the master refused to allow interest on the salary, and also because he held that it did not continue after the date of the agreement. Interest was clearly not intended by the parties. As already quoted, their language is, “ In settling, .... Graham is to receive (i. e., to be credited with) a salary of seven hundred and fifty dollars per year; ” that is, at the rate of seven hundred and fifty dollars a year; and “ after deducting this sum, the division is to be equal,” etc. It was plainly regarded as one entire sum, not due from year to year previously, but agreed upon at the time as a proper allowance, on, but not before the final settlement. With regard to the continuance of the salary after the agreement, there is room for doubt whether the paper was meant as a dissolution of the partnership, or a mere settlement to date. If it were necessary to decide that question, we should incline, notwithstanding some difficulties, to the former view. But the death of McCullough only a few weeks later makes this question unimportant. By that event, if not before, the partnership was certainty dissolved; and thereafter Graham was a surviving partner, with the duty to wind up the business and settle the account. It does not appear just what he did towards this end, but it is undisputed that the business was not settled, nor the accounting done, until after his death, by his administrator. Under these circumstances, we cannot say that the learned master was in error in holdiug that the right to salary ceased at the date of the agreement.
Defendants’ last assignment, to the refusal of credit for certain moneys claimed to be trust funds, would be well taken if supported by the facts. Notwithstanding the extreme generality and conprehensiveness of the language of the agreement as to all the property, of every nature and kind, held by Graham, it cannot be taken to include the moneys or property of others held by him in trust. And so the learned master held; for he deducted, $9,040.26, as trust funds, from the gross col-, lections, aud reported that “ none of the money or notes (other than the $9,040.26) has been identified as trust moneys.” The contention cannot be sustained.
The other assignments of error, on both sides, are sufficiently treated in the general discussion of the contract, or are to findings of fact as to which no errors by the master and court have been made clear to us.
Both appeals are dismissed, at the costs of the respective appellants, and the decree affirmed.