Scudder v. Perce

HENSHAW, J.

The appeal is from the judgment on the judgment-roll. The question presented is the true construe

[431]

tion of a partnership agreement. The facts found by the court, so far as necessary to this consideration, are that defendant was a physician and surgeon with an established practice in the town of Long Beach. He entered into a partnership agreement with plaintiff, who also was a physician and surgeon, but without practice in Long Beach. By the terms of the agreement the partnership was to continue until a given date when it became optional with either party to terminate the relationship. Plaintiff was to pay and did pay one thousand dollars down on account of the purchase price for his interest in the partnership and was to continue to pay therefor at the rate of fifty dollars a month until the full sum of four thousand dollars had been paid. The provision of the partnership agreement touching the termination of the contract is as follows: “That at the end or other sooner determination of their copartnership the said copartners, each to the other, shall and will make a true, just and final account of all things relating to their said business, and in all things truly adjust the same; that all and every of the stock and gains and increase thereof which shall appear to be remaining, either in money, goods, fixtures and furniture, debts or otherwise, shall be divided between them, share and share alike. It being distinctly understood that at the expiration of said one year, as aforesaid, in ease either of the parties hereto decide to terminate and after making the division hereinbefore provided, that the party of the first part will pay to the party of the second part the sum of one thousand ($1,000) dollars; and the party of the second part shall thereupon transfer and assign to the party of the first part all his interest in and to all the office and laboratory furniture and fixtures and in the good will of said business, and in all gains of said business

other than moneys earned and

collectedThe controversy between the parties arises over the meaning of the language here quoted and in particular over the meaning of the words italicized. Plaintiff sued demanding the payment of the one thousand dollars and insisted that he was entitled under the contract to one half of the moneys earned by the partnership and not collected, in other words to one half of the book accounts. Defendant answered expressing his willingness to pay the one thousand dollars, but contending that he was entitled upon this payment to all of the uncollected book accounts.