322 Mass. 340 | Mass. | 1948
This is an appeal by the defendant Jones, hereinafter called the defendant, from a final decree entered in a suit for a partnership accounting.
Facts found by the judge and those which we find (Lowell Bar Association v. Loeb, 315 Mass. 176, 178) may be summarized as follows: On November 1, 1945, the plaintiff and the defendant by an agreement in writing formed a partnership to carry on a brokerage business in food under the
It was provided in the partnership agreement that the partnership could be dissolved “at any time by mutual agreement of the parties.” For reasons which are not here material the parties agreed to dissolve the partnership as of April 20, 1946. Thereafter the defendant, using the partnership assets, including the firm name, continued to carry on at the same place the business which had formerly been carried on by the partnership. The defendant did business under the firm name until June 1, 1946, at which time he formed a partnership with the defendant Weismann. Thereafter the business was carried on under the name of Jones, Weismann & Co. At about the time the new partnership was formed the defendant rendered an account of the old partnership to the plaintiff. The parties have stipulated that the defendant owes the plaintiff the sum of $3,400 with respect to the items set forth in the account. This sum is made up of the cash contributed to the firm’s capital by the plaintiff, the amount of his loan, and his share of the net
The principal questions raised by this appeal arise from the findings of the trial judge with respect to good will. The defendant argues that in the account submitted to the plaintiff he accounted for good will, and that the judge’s finding to the contrary is based on an erroneous construction of the account. The defendant further contends that the finding with respect to the value of the good will was* erroneous in law and was unsupported by any evidence.
In support of the first contention the defendant argues that by including in the account brokerage fees on unfilled orders without any deduction for expenses he necessarily accounted for the good will. It appears that these fees were included in the account as part of the accounts receivable which were valued at $2,863.85. What portion of this sum represents brokerage fees on unfilled orders does not appear. In any event, the judge was not required to find that this constituted an accounting for the good will of the partnership.
We are of opinion that the judge’s findings with respect to the value of good will cannot be said to be plainly wrong. The facts establish that the defendant transferred to the partnership "the good will of the business which had been conducted by him in his individual capacity.” The judge therefore could find that the partnership possessed a good will at its inception and that this had not disappeared at the date of its dissolution. Possibly it could have been found that additional good will was acquired while the firm was in existence, even though that period was brief. But whether the partnership possessed any good will at
The defendant was under a duty to account for the good will to the plaintiff. The partnership agreement is silent on the subject of good will in the event of dissolution, except where that occurs by reason of the death of one of the parties.
The other questions argued by the defendant but not discussed in this opinion have not been overlooked. We find nothing in them that requires discussion. The final decree, however, is irregular and requires modification. Instead of merely establishing the amount of the defendant’s indebtedness to the plaintiff it ought to order the defendant to pay that sum to the plaintiff. See Malloy v. Carroll, 287 Mass. 376, 391; Jones v. Fraser, 305 Mass. 147, 149. As so modified the decree is affirmed with costs.
So ordered.
The decree ordered the bill to be dismissed as to the defendant Weismann; the plaintiff did not appeal.
The agreement provides that in case of dissolution of the partnership by death of one of the parties, the surviving partner shall account to the legal representatives of the deceased for the latter’s interest, exclusive of good will.