Hollman v. Wolf

THE COURT.

This is an appeal from a judgment in favor of the plaintiff for the sum of $2,326.01.

Plaintiff and defendant entered into a copartnership about June 1, 1906, for the purpose of carrying on a real estate business. The articles of copartnership drawn up at that time specified that all expenses, gains, profits and increase growing out of said business should be divided between the partners, share and share alike. However, during the continuance of the partnership, first one partner, the defendant, withdrew more money from the common fund than the plaintiff, and later on the plaintiff drew more than the defendant. A trial balance prepared by the bookkeeper of •the firm June 30, 19Í9, showed a balance due the defendant of $434.25 and an overdraft of the plaintiff in amount of $1,170.75. It was shown that this result was reached by ignoring all entries in the books of the firm up to and including the end of the. year 1914, during which time the overdrafts of the defendant occurred. This was done on the theory that at that time the partners struck a balance and thereafter made a readjustment of the net profits. The ■plaintiff in turn insists that from the beginning the defendant withdrew more money than plaintiff, due to the fact that he was a married man and required more money and

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that an oral agreement was entered into that the first $400 profits was to be divided in the proportion of $225 to defendant and $175 to plaintiff, and that when the profits of the business justified, the difference in withdrawals would be adjusted. This arrangement is alleged to have continued until some time in 1910. Taking this version of the agreement the excess of profits drawn by defendant over that of plaintiff is $4,043.02, one-half of which is $2,021.51, or $304.50 less than the amount found by the court to be due plaintiff. Plaintiff concedes the amount allowed by the court to be $304.50 too much and consents to a reduction of the amount of the judgment to that extent.

The court found that the partnership was created in June, 1906, and continued until May 29, 1917, when it was by mutual assent dissolved; that during that period the defendant appropriated from the partnership funds an amount in excess of that taken by plaintiff equal to $4,652.02, due to the fact that during the latter part of 1908, all of 1909 and 1910, the defendant was given $225 out of the first $400 profits each month; that it was never agreed but that there should be an equal division of the profits, and the difference between the aforesaid amounts would be adjusted at a later date and the overdrafts would ' be made good to plaintiff.