73 Iowa 399 | Iowa | 1887
For many years prior to the 2d of October, 1882, Otto Junkerman and Julius W. Haas were engaged in business as partners under the firm name of Junkerman & Haas. On that date they signed articles of copartnership with F. Baforth, Jr. As it is a question in the case whether a partnership with Baforth as a member was ever in fact constituted, it is material to set out some of the provisions of said articles. They are as follows:
“These articles of copartnership, made and entered into this 2d day of October, 1882, by and between Otto Junker-
“ (1) That the said parties hereto, in consideration of the terms and covenants hereinafter mentioned, and for the purpose of carrying on and continuing the wholesale and retail drug business prior to the date of these presents, in said city of Dubuque, prosecuted and carried on conjointly by the said Otto Junkerman and Julius W. Haas, do hereby form, enter into, and constitute themselves, a copartnership under the firm name and style of Junkerman & Haas, being thé nam'e and style of the predecessors of the copartnership herein formed.
“ (2) The said copartnership is to be and continue for the full term of five years from and after the date of these pres-en ts.
“ (3) The capital stock or permanent business fund of this copartnership is to be sixty thousand dollars, furnished in equal shares by the said parties hereto, and is to consist of drugs, goods, wares and merchandise, stock in trade, fixtui*es, etc., purchased by this copartnership of the old firm of Junkerman & Haas at prices as per present inventory of stock of said old firm; that is to say, the said Otto Junkerman and Julius ~W. Hass are each to place into the business of this copartnership the sum of twenty thousand dollars in goods, wares, and merchandise and fixtures of the old firm of Junker-man & Haas, and the said F. Raforth, Jr., is likewise to place in the business of this copartnership the said sum of twenty thousands dollars in goods, wares, merchandise, fixtures, etc., which he shall first have purchased of the old firm of Junker-man & Haas, paying therefor to the members of said firm the sum of ten thousand dollars cash, and giving them his promissory note for ten thousand dollars, payable on or before five years after the date of these presents, and bearing interest at the rate of seven per cent per annum, said interest being due and payable on the 1st day of January, 1884, and
“ (4) The said capital stock or common business fund of said copartnership may be increased, but shall not be diminished, during the continuance of the copartnership.
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■“(6) This copartnership assumes none of the liabilities of the old firm; neither shall it have any claim or interest in and to the assets of the old firm of whatsoever name, nature or description. It is understood, however, that all the members of this copartnership shall lend their labor, time and counsel to the liquidation of the liabilities of the old firm, as well as to the disposition of and realization from assets of the old firm.
“ (7) If, at the time of the commencement of this copartnership, the stock of goods,,etc., of the old firm of Junker-man & Haas should inventory for more than sixty thousand dollars, (the amount of the capital stock of the new firm,) then such excess over sixty thousand dollars shall be received and retained by this copartnership, giving to Otto Junker-man and Julius W. Haas credit on the books of this copartnership therefor; the amount of such credit to them, respectively, being payable as by the parties hereto hereafter determined. * * * ”
Raforth paid $7,300, of the amount which he agreed to pay, in cash, soon after the articles were signed. He did not, however, give the promissory note provided for in the articles,. and he has never paid the balance of the cash payment. It does not appear that demand was ever made for the note, although he was requested by the other parties to pay the balance of the money due. The parties entered upon business as provided in the articles; Raforth giving his attention to the business, and being recognized and treated as a partner by the others. The old firm was largely indebted when
In the sixth paragraph it is provided that each copartner should lend his labor, time, and counsel to the liquidation of the liabilities of the old firm, as well as to the disposition of and realization from its assets. This covenant constituted part of the consideration, as certainly as the undertaking of each partner to' put into the business the specified amount of property; but it is one which could only be performed in the future. The language by which the partnership ivas constituted, however, was in the present tense. It clearly indicates an intention to constitute the firm from the time of signing the writing, and this intention is clearly manifested by the second paragraph, which provides that the partnership shall continue for five years from and after the signing of the articlés.
We do not overlook the condition of the third paragraph, which provides that Eaforth shall put into the business $20,000 in goods and merchandise which he shall first have ptorehased of the old firm,- paying therefor, to the members of said firm, the sum of $10,000 in cash, and giving his' note for a like amount. This provision, however, does not control the question as to the time when the partnership should begin. By it Eaforth was bound to put into the business $20,000 -worth of goods, which he was to purchase of the old firm; and for which he was to pay the members of that
We have the right to assume this; for, as stated above, the parties at once entered upon the business the prosecution of which they had in view when they signed the articles.. They took possession of the stock of merchandise formerly owned by the old firm, and continued to make sales from it, and additions to it. Raforth engaged in the business, assisting in the control and management of it, and being recognized and treated by the other parties as a partner in it. That he was bound to pay the members of the firm the stipulated price for the goods cannot be questioned. But very clearly, we think, such payment was not a condition precedent to the constitution of the firm.
Supplemental Opinion;
By the Court. — Counsel for the appellee, in a petition for a rehearing, with much force and vigor contend that the
Our attention is called to the fact that we failed to say in words that our ruling did not affect certain persons who were made defendants, but not served with notice, and did not appear. We supposed counsel would concede it could not have such effect.
It is also deemed proper to say, to the end that our ruling may not be misunderstood, that the mortgage identified in the record as Exhibit A has priority over the attachment liens and judgment of the plaintiffs, exceptas to the indebtedness therein named, as being due William Stoleben, which we find is not a partnership debt. Subject to what we have herein said, the former opinion is adhered to.