Sheppard v. Boggs

9 Neb. 257 | Neb. | 1879

Maxwell, Oh. J.

This action is brought into this court by appeal. In the court below the case was referred to a referee, who found in substance that in October, 1875, the plaintiff paid the defendant $900 to be admitted to. a half interest in the business of certain insurance companies in the city of Lincoln; that the partnership continued until about the 1st of January, 1877, when the defendant excluded the plaintiff from the business and from access to the books of their agencies, taking them exclusively into his own possession. The referee found a settlement had been made between the parties in October, 1876, and a due bill given by the defendant to the plaintiff for the amount due, which was excluded from consideration. He also found that the commissions on the business of the firm from October 1st, 1876, to December 31st of that year, was the sum oí $345.71, and that the expenses were the sum of $31.45, leaving the net receipts the sum of $814.26. The referee also found that the net premium receipts for the year preceding the dissolution of the agency was the value of the agency, and that such receipts amounted to the sum of $901.86. As a conclusion of law the referee found that the plaintiff was not entitled in this action to an accounting, or to recover on the due bill, and found that there was due the plaintiff' the sum of $167.49-|-. Exceptions to the report were overruled by the district court and judgment rendered on the finding. The finding of facts is not objected to by either party, and none of the testimony is preserved in the record.

The only question to be determined is, the correctness of the conclusions of law of the referee. Tim petition is an ordinary one for a dissolution of the partnership and an accounting. The answer admits many of the allegations of the petition to be true, and alleges that the defendant has at all times been ready to settle and account with the plaintiff. That a court of equity has authority in such a case to decree an accounting will not be denied, and having obtained jurisdiction for this purpose, it may retain it for the purpose of doing complete justice between the parties, and to prevent a multiplicity of suits. Story’s Eq. Juris., § 64, k.

"When a partnership is dissolved the good-will, is a part of the assets of the firm.

In Willett v. Blanford, 1 Hare, 253, the Y. C. says: “ The whole or a substantial part of the trade may consist of good-will, leaving the renewal of contracts with the old connection of the firm unaffected; in such case the good-will is the identical source of profit, which operates both before and after dissolution.”

In Bradbury v. Dickens, 27 Beavan, 53, the court, on the dissolution of a literary partnership, ordered the right to use the name “ Household Words ” to be sold and the proceeds to be distributed with other assets of the firm.

In Williams v. Wilson, 4 Sand. Ch., 379, where, on the dissolution of a partnership in a private insane asylum, one of the partners, as in this case, claimed the right to retain the sole possession of the establishment, the court ordered the lease of the premises, together with the good-will, to be sold and the proceeds distributed among the partners.

In Wedderbum v. Wedderbum, 22 Beavan, 84, it was held that “the good-will of a trade, although inseparable from the business, is an appreciable part of the assets of a concern, both in fact and in the estimation of a court of equity.”

Upon the dissolution of a partnership, a court of equity may order the assets to be sold, or disposed of in such manner as may be deemed most advantageous to the members of the firm, or it may permit a partner to retain them upon full payment to his co-partners of the value of his interest. As the referee has found the value of the agency to be the sum of $901.86, the plaintiff is entitled to one-half of that sum. The referee therefore erred in his conclusions of law, and the court below in confirming his report. The judgment of the court below is reversed, and judgment rendered in this court for the sum of $785.70 against the defendant, with costs of suit and reference.

Judgment accordingly.