Booth v. Bond

MARKS, J.

This is an appeal from a judgment for defendants in an action to dissolve a partnership, for an accounting, and to recover damages for breach of contract.

In January, 1923, a special partnership was formed with plaintiffs as general partners and defendants as special partners. Disagreements occurred and, by contract dated February 8, 1929, the partners agreed on a dissolution of the partnership effective on that date. Plaintiffs were selected to liquidate the assets and liabilities of the partnership. It was agreed that defendants loan to each plaintiff $7,000, and to George Mulbar $5,000, each loan to be for five years with interest at 6 per cent per annum, the notes evidencing them to be secured by pledges of stock in a corporation then in the process of organization. The loans were made, the notes were executed and the stock certificates delivered. The busi

[155]

ness was completely liquidated by plaintiffs. The last of the physical assets were disposed of in July, 1930, and the last account due the partnership was collected in 1936.

In 1931, W. H. Booth, through an attorney, made a demand for damages. Nothing further seems to have developed at that time.

Under date of March 29, 1938, plaintiffs and Mulbar, through an attorney, made demand on defendants for $37,-333.32, damages, and for return of the three promissory notes and the stock pledged to secure their payment. Negotiations were conducted which resulted in the return of the promissory notes and the pledged stock and the execution of a written contract dated May 6, 1938, which recited that W. H. Booth, M. B. Crumley, and G. T. Mulbar, in consideration of the return of the notes and stock “do hereby release and forever discharge G. W. Bond, Frank Bond, Clarence Bond and Edward Sargent, and each of them, from any and all claims, demands and liabilities which the undersigned or either or any of them may have against said G. W. Bond, Frank Bond, Clarence Bond and Edward Sargent, or either or any of them from the beginning of the world to the date of these presents.”

The answer of the defendants, other than Sargent, who was not served and did not appear, set forth seven separate defenses. The first was an answer to the allegations of the second amended complaint. The second pleaded the dissolution of the partnership under the contract of February 8, 1929, a copy of which was attached and made a part of the pleading by reference. The third pleaded the contract of dissolution and also the attorney’s demand of March 29, 1938, a copy of which was incorporated in the pleading, the delivery of the three notes and the pledged stock and the release of May 6, 1938, a copy of which was attached to and made a part of the pleading by reference. Plaintiffs failed to deny the genuineness and due execution of any of these instruments. The other special defenses set up various statutes of limitation.