37 N.Y.S. 696 | N.Y. App. Div. | 1896
The referee evidently based his decision upon the language of the agreements alone, without taking into consideration the evidence
This language conclusively shows that they understood earnings and profits were the same thing. In the modification they spoke of ea/rnifigs as though that had been the word used in. the original agreement, when no such word had there, been used* but only .the word profits. This shows that they understood the-words to mean the ■same -thing.. They so used them in these agreements, at. least. The evidence to which we have referred established the following facts: The plaintiff was in defendant’s employ from.' 1871 until the- first agreement was made May 1, 1885, and from about 1877 the plaintiff was paid for his services ' by a certain fixed salary, and in addition á percentage of the net profits or earnings of the business. Plaintiff was bookkeeper until 1881, and from that time until 1885 was salesman, but remained familiar " with the books, ■ During all the time plaintiff was receiving a percentage of the net profits or earnings, and up to the time the co-partnership was formed, the
In the fall of 1889, plaintiff first charged his own personal taxes to the account of business expenses on the co-partnership books and similar charges were made in 1890 and 1891. No question as to these taxes had ever arisen before 1889. At some time after the charges were made the defendant objected to them, and these taxes were thereupon charged back to the plaintiff.
In the year 1891, after the yearly balance had been struck, the plaintiff protested against defendant’s personal taxes being charged to business expenses, and subsequently at some time the defendant insisted upon their so remaining, and the plaintiff made no further objection until the dissolution of the co-partnership, about the 1st of May, 1892. The balance was struck at the time of the dissolution as it had been before with these taxes .in the account, and plaintiff accepted the balance coming to him as so ascertained, though protesting against the charges for defendant’s personal taxes. This action was not commenced until August, 1893.
In Woolsey v. Funke (121 N. Y. 87) the court was considering the construction of a charter party which provided that the plaintiffs should furnish the vessel at their own expense, with all the supplies required, except water, the cost of which the defendant was to pay. It was claimed by the defendant that under this charter party the plaintiffs were 'bound' to furnish the water, the expenses thereof to be paid by him, and not having done so,, had broken- the contract, and were not, therefore, entitled to recover certain damages claimed. The court held otherwise, among other things, saying that if they were not right in the interpretation of the language of the charter party, it must at least be- admitted that the language was somewhat ambiguous or indefinite, and that under such circumstances the practical interpretation of the charter party by both parties was a consideration of great importance. (Citing with approval, Insurance Co. v. Dutcher, supra.) And in Nicoll v. Sands (131 N. Y. 19, 24) this same doctrine was approved (citing Woolsey v. Funke, and Ins. Co. v. Dutcher, supra). In Story on Partnership (Gray’s ed. §§' 191, 192. and notes) it is said: ■ “ In all cases of doubtful-
“ Entries in the books of a partnership have been said to be as conclusive of the rights of the partners as if prescribed in a regular contract. * * * Partnership articles in the view of courts of equity, whatever may be the rule at law, are liable to be controlled, superseded, qualified or waived by the acts and transactions of the partnership, in the course of the business thereof, wherever the assent of all the partners thereto may be fairly inferred, and however positive or stringent those provisions may be. * * * Partners ■ * * * if they please, may in the course of the partnership, daily come to a new arrangement, for the purpose of making some addition or alteration in the terms on which they carry on business, provided those additions or alterations be made with the unanimous concurrence of all- the partners.’ * * * In short, in many cases of this kind, looking to the course of conduct of the partners and the special circumstances of their business, or to their general acquiescence, or their positive acts, we may often have the most satisfactory evidence that the partnership articles have been laid aside, either fro ta/nto or in whole, and that new articles and arrangements have been entered into in their stead.”
It seems to us that the evidence in question, under the circumstances, is not to be considered for the purpose of varying the terms of the written agreements, but rather as giving a proper construction to the agreements and the words “ net earnings ” or “ profits,” as Therein contained. These words as used in these agreements may be considered as so ambiguous and uncertain as that evidence may be given of the conversation between the parties at the time the agreements were made, and the acts of the parties in the conduct of the co-partnership, to show what the parties intended by the use of those words in the agreements. Whether we are to give this effect to the evidence, and construe the language of the contracts accordingly, or whether we are to regard the agreements as modified in view of the evidence, in either event the rights of the parties are to be determined by regarding the personal taxes of the defendant as properly part of the expenses of the business.
Van Brunt, P. J., Patterson, O’Brien arid Ingraham, JJ., concurred.. /
Judgment reversed and judgment directed for defendant, with costs of appeal and cost's of the court below.