Schainman v. Sommer

KOFORD, P. J.

This is an appeal by plaintiff in an action of partnership dissolution and accounting resulting in a judgment in favor of defendant Sommer and against plaintiff for $4,651.45. In this opinion we will use the word “defendant” as referring to defendant Sommer alone. The record on appeal is the judgment-roll alone. The par

[365]

ties entered into a written agreement November 5, 1920, which is the agreement found to be the partnership agreement. Another agreement was entered into - by the parties dated February 1, 1923, called by the parties “Agreement to Dissolve Copartnership.” These two agreements are shown in the judgment-roll as exhibits to plaintiff’s complaint. The court took and settled the account between the two parties and gave its findings and judgment as stated above.

Appellant claims that the court erred in so finding and deciding. He claims the agreements show that the parties were not copartners. He further claims upon this appeal that under said agreements he was not liable for losses beyond the amount of his investment, to wit, $15,000.

The agreement of November 5th does not use the word “copartnership,” but it provides for the carrying on of a general contracting business by the defendant under the “fictitious firm name and style of I. M. Sommer

&

Co.” It provides that plaintiff’s name shall not be used in the business transactions; that he shall put up $15,000 to be used in said business; that profits shall be divided one-third to plaintiff and two-thirds to defendant; that profits shall accumulate until defendant’s share thereof shall equal plaintiff’s $15,000 (par. 4, sec. d). It also provides in paragraph 5 that losses resulting from said business shall be borne by the parties in the following manner, to wit: “(a) The party of the second part is to bear all losses up to the amount of his invested capital, to-wit, fifteen thousand (15,000.00) dollars, plus the amount of any profits that said party of the second part may have drawn, or to which he may be entitled at the time of said losses, (b) The party of the first part is to bear all losses up to the amount of his invested capital, plus the amount of any profits said party of the first part may have drawn or to which he may be entitled at the time of said losses, (c) The above division of losses is to be in effect only so long as the party of the first part has not fifteen thousand ($15,000.00) dollars invested in the business, as set forth in paragraph four, section (d). After said party of the first part has a credit of fifteen thousand ($15,000.00) dollars invested in the business as set forth in. paragraph four, section (d), then the share of losses