Suit in equity filed by Dr. Charles R. Willman to enjoin his former partner, Dr. Edward M. Beheler, from practicing medicine in St. Joseph, based upon a restrictive covenant, Article XXII of the partnership contract, which provided: “In the event Dr. Beheler leaves the partnership voluntarily or involuntarily, Dr. Beheler agrees that he will not practice medicine for a period of five (5) years from the date of his leaving the partnership within a radius of twenty (20) miles from the corporate limits of St. Joseph, Missouri * * Dr. Beheler filed a counterclaim for $40,000, allegedly due him for his percentage of the partnership assets and accounts receivable, under Article XVIII of the partnership contract.
Following trial by the court, without the aid of a jury, judgment was entered for defendant Beheler on plaintiff Willman’s petition and against defendant Beheler on the latter’s counterclaim, except that the court awarded Beheler $2,915.04, the amount Beheler was found to have paid for his interest in the partnership assets, and awarded Beheler the accounts receivable remaining uncollected as of the date of judgment. After filing unavailing motions for new trial both parties appealed. More than $30,000 is in dispute and, the notice of appeal having been filed prior to January 1, 1972, this Court has jurisdiction. Mo. Const. Art. V, §§ 3, 31, V.A.M.S.
Willman, an established surgeon practicing in St. Joseph, desiring to have a younger associate, contacted Beheler, who was completing his postgraduate medical training. On April 10, 1965 they entered into a one-year contract of employment. Willman advised Beheler prior to employment that a partnership would develop if the employment relationship proved satisfactory. A partnership agreement for the practice of medicine was entered into on December 1, 1966.
Article II provided that the partnership should continue “until dissolved by mutual *774 agreement or operation of law; either partner may terminate his interest in this partnership by the giving of a written notice to the other partner at least thirty (30) days in advance of the intended termination date.”
Article XVIII, captioned “Leaving Partnership,” provided:
“In the event a partner voluntarily leaves the partnership, he will be paid his percentage of the book value of all partnership assets, excluding the accounts receivable. The accounts receivable shall be frozen as of the date of the partner’s leaving the partnership, and underlined with red pencil, and said leaving partner’s share of said accounts receivable shall be based on his percentage of the net profits as set out in Article XV of this agreement, less any necessary collection expenses. Said leaving partner shall receive said percentage of said accounts receivable for a period of __ months from the date said partner leaves the partnership. After the expiration of the___month period, all uncollected accounts receivable shall become the property of the remaining partner.”
The agreement provided for division of profits at the following percentages for the first, second and third years, Willman to take the higher percentage in each instance: 65-35; 60-40 ; 55-45. After July 1, 1968 the partners were to share 50-50.
The partners were not compatible. There was tension in the office. Willman complained of lack of communication and consultation between the partners; failure of Beheler to cooperate in matters of patient care, trading weekends, office administration, etc. Willman was not satisfied with the way the partnership was working out and finally, on July 2, 1968, Willman handed Beheler the following letter: “After much thought and consideration and at the advice of Professional Management, I have decided to exercise the option of the contract with thirty days notice of termination of partnership.” Beheler then wrote Willman, calling for compliance with Article XVIII. Beheler remained in St. Joseph and has continued to practice medicine there.
On the Petition
Appellant Willman contends that the court erred in refusing to enforce the restrictive covenant; that Beheler left the partnership involuntarily and was bound by his convenant prohibiting him from practicing in that event.
Beheler contends that Willman had no right to expel him; that the contract contemplates that if one partner leaves the other remains; that Willman was the “leaving” partner and Beheler the “remaining” partner; that since Beheler did not leave he did not leave involuntarily; that the parties did not intend to permit an “expulsion” of Beheler without good cause and that Willman did not have good cause to expel him; that Willman could not “terminate” the partnership without suing for dissolution under § 358.320 RSMo 1969, V.A.M.S.; that Article XXII is void as against public policy and constitutes an unreasonable restraint of trade.
Extensive extrinsic evidence was admitted at the trial relating to negotiations, communications and conversations between Willman, Beheler, Professional Management, Inc. and a lawyer touching the meaning of the words “leaves the partnership * * * involuntarily,” as used Tn Article XXII. We deem these words to be plain, clear, unambiguous and unequivocal and not in need of construction arising out of extrinsic evidence bearing upon the intention of the parties. “If the terms of a contract are clear and unambiguous the contract will be enforced or given effect in accordance with its terms, and without resort to construction to determine the intention of the parties. State ex rel. National Life Insurance Co. v. Allen,
In a partnership without a definite term either partner may dissolve the partnership by his act alone in accordance with his own will and pleasure. 60 Am. Jur.2d Partnership § 175. No fixed term for the duration of the partnership was agreed upon. Either partner could at any time “terminate his interest” in the partnership without the consent of the other, Bevins v. Harris,
In Beheler’s brief an effort is made to reconstruct the partnership agreement in terms of “departing” partner and “remaining” partner; to rewrite Article XVIII to provide for payment by remaining partner to departing partner of his percentage of book value of partnership assets within 60 days after termination; to omit “voluntarily or involuntarily” from and add “before he is an equal partner” to Article XXII after the words “leaves the partnership,” etc. on the ground that this is what the parties actually agreed to orally. As stated in Ackerman v. Globe-Democrat
*776
Publishing Co.,
The references in the partnership agreement to “departing” and “remaining” partners were for descriptive or identification purposes only. They have no significant bearing on this case and did not create in Beheler the claimed legal status of “remaining” partner. Since a partnership consisting of two persons cannot continue to exist after one partner leaves the partnership there can be no such thing as a one-man partnership consisting of a “remaining” partner after the one partner leaves.
Willman’s act of leaving the partnership dissolved the partnership ipso facto and as a matter of law. He left the partnership voluntarily, of his own free will. In contemplation of law both partners “left” the partnership when one of them left because upon dissolution the partnership ceased to exist as an entity. When the partnership ceased to exist as an entity Beheler “left” the partnership within the meaning of the law. His departure was involuntary as a matter of law. He left the partnership involuntarily as a result of the necessities of the situation. “Involuntarily” as used in Article XXII meant without will or power of choice — a change of status not resulting from volition or desire. Beheler’s exit was not one “proceeding from choice.” His leaving was “done * * * unwillingly or under compulsion.” Cf. Webster’s Dictionary definitions of “involuntary.”
Beheler’s leaving was involuntary not only as a matter of law but also as a matter of fact. Beheler regretted Willman’s decision to terminate the partnership and so expressed himself. The plain inference from the record is that dissolution of the partnership was involuntary as far as Be-heler was concerned, i.e. without his consent and against his will.
Under this contract it was not necessary for Willman to show that he had good cause, arising out of Beheler’s real or fancied derelictions as a partner, to dissolve the partnership. The partnership agreement contained no such requirement as a precondition to “termination” or dissolution and none will be read into the contract by judicial construction. Either partner had an unconditional right to “terminate his interest in the partnership” and withdraw and dissolve the relationship (they are one and the same in this case) at any time, without the consent of his partner, for any reason deemed sufficient, Brannigan v. Schwabe,
On the question of the reasonableness of the restrictive covenant Beheler argues that there is no time limitation on Willman’s right to terminate the partnership; that if Willman could “expel” him by making him “leave involuntarily” Willman could have waited 30 or SO years or any period of time and then at his slightest whim force Beheler out of his practice, thus “holding the power of life and death” over Beheler for the duration of the partnership. A similar argument in extremes was made in Freudenthal v. Espey,
Beheler argues that there is a social need in Northwest Missouri and the vicinity of St. Joseph for the services of a skilled surgeon and that in determining whether to enforce this restrictive covenant the Court should weigh the benefit to the people of this section of the State which will result from a refusal to enforce the covenant, compared with the benefit to Willman by enforcing it; that “the community can ill afford the loss of Beheler for the personal satisfaction of Willman”; that as a matter of public policy Article XXII should not be enforced. There is a counterbalancing public policy which recognizes the interest of the public in protecting the freedom of persons to contract and in enforcing contractual rights and obligations. Lovelace Clinic v. Murphy,
Having continued to practice in St. Joseph after the date he left the partnership Beheler violated the restrictive covenant. “The defendant is in the wrong. He is deliberately doing what he plainly agreed not to do.” Freudenthal v. Espey, supra,
*778
This brings us to the question
how
Article XXII may be enforced. It restricts Beheler from practicing medicine for a period of 5 years “from the date of his leaving the partnership.” Carried out literally this provision would prohibit Be-heler from practicing in the restricted area from August 2, 1968 to August 2, 1973. Nearly five years having passed since August 2, 1968, the practical effect of literal enforcement of Article XXII would be to restrict Beheler from practicing medicine for only a few weeks. Willman suggests in the “Conclusion” of his brief on appeal that the 5-year period should commence at the time the judgment becomes final, but this cannot be decreed because the contract plainly provides that Beheler is not to practice medicine for the agreed period
from the date of his leaving the partnership,
and Willman’s petition seeks injunc-tive relief under the provisions of the contract. Paraphrasing Brown v. Stough,
We recognize that rights entitled to enforcement from a day certain for a defined period should not he lost or substantially diminished by the vagaries of protracted litigation. On the other hand, the realities of the situation may not be ignored. During the period August 2, 1968 to date Beheler has been transformed from a newcomer to the St. Joseph community, with but short acquaintance and limited practice, to an established and recognized medical practitioner and surgeon. To enforce the restrictive covenant from this day in May 1973 forward through May,
1978
would be inequitable and unfair, notwithstanding Beheler is in the wrong, because it would impose upon him a much harsher penalty than if his practice had been interrupted at the earlier date of August, 1968. This does not mean, however, that Willman’s rights are not to be vindicated. Equity will not suffer a wrong to be without a remedy, and seeks to do justice and avoid injustice. Hydesburg Common School Dist. v. Rensselaer Common School Dist.,
On the Counterclaim
Appellant Beheler assigns error in refusing to enforce Article XVIII as written. He claims that he is entitled to judgment for all of the partnership assets in exchange for their book value (approximately $200) and all of the accounts receivable in the amount of $23,634.21.
As to partnership assets: Article XIII provided for the purchase by Beheler of a one-half interest in the capital assets (medical instruments, pharmaceutical supplies, office equipment and furniture) for the price of $3,242.03, to be paid by Beheler executing to Willman a nonnegotiable, noninterest-bearing promissory note payable in 36 equal monthly installments. The actual value of these assets on August 2, 1968 was $20,000-25,000, but their depreciated book value was only $208.10. The promissory note was never given, but Be-heler made payments and received credits totaling $2,915.04, thereby reducing the $3,242.03 debt to $326.99.
Instead of enforcing the first sentence of Article XVIII (under which Willman would have been paid about $200 for his interest in capital assets worth $20,GOO-25,000) the trial court decreed that “in equity and good conscience” Willman should have the privilege of acquiring Beheler’s interest therein by refunding to Beheler the $2,915.04 paid by Beheler thereon.
As to the accounts receivable: Article XII provided that all accounts receivable created prior to as well as after July 1, 1966 should be owned by the partnership and distributed according to the percentage of profits agreed upon. There were blank spaces in Article XVIII which were never filled in, because Willman could never get Beheler to discuss the matter. Willman tried to reach an agreement with Beheler on these things but failed. The parties never did agree upon a period of time to be inserted. The accounts receivable amounted to $59,819.22 on July 31, 1968. Willman continued to collect the accounts receivable and by agreement the collections were divided between the ex-partners on the basis of 55% to Willman and 45% to Beheler.
The trial court decided that three years was a reasonable period for collection and division of the accounts receivable; the judge in effect “filled in the blanks” and decreed that all amounts collected prior to August 1, 1971 be divided 55% to Willman and 45% to Beheler, and that all accounts unpaid by August 1, 1971 become the property of Beheler.
Where blanks are left in a written instrument and not filled in the agreement is uncertain and incomplete, and there is no meeting of the minds. Bengimina v. Allen,
Decree nisi affirmed as to the counterclaim and ordered held in abeyance until the issues on the petition are determined; decree reversed as to the petition and cause remanded for further proceedings consistent with this opinion, with instructions to enter final judgment on both petition and counterclaim when the issues on the petition are finally adjudicated.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.