Parigian v. Phillips

KNIGHT, J. The plaintiff and the defendant entered into a partnership to operate a meat market, and about a year afterwards plaintiff brought this action for its dissolution. He asked also for the appointment of a receiver, an accounting, and attorney’s fees. The defendant died during the pendency of the action, and the cause was after-wards tried and determined on the issues raised by the complaint, the answer filed by defendant and a supplemental answer filed by the administrator of defendant’s estate, who was substituted as party defendant. In the settlement of the accounts the trial court found, among other things, that the defendant was entitled to retain the sum of $2,100 theretofore paid to himself as salary out of the partnership property; and that there was due from plaintiff to the partnership the sum of $1,000, with which plaintiff should be charged. The judgment so decreed; and from those two provisions of the judgment plaintiff prosecutes this appeal, [704]Avhich was taken upon the judgment-roll alone, it being contended that the findings and judgment as to both items are contrary to the express terms of the partnership agreement, a copy of which is attached to the complaint.

An examination of the record shows the appeal is utterly without merit. With respect to the .first item, the agreement provided that defendant should devote all of his time to the operation of the business, and that plaintiff should not be required to devote any part -of his time thereto, and it contained no express provision as to the payment of salaries. But the issue as to payment of wages was brought in by plaintiff himself. In this regard he alleged in his complaint “that it was further understood and agreed by and between the parties . . . that neither of the parties thereto shall receive any wages, salaries, compensations or any other remuneration whatever, from said partnership undertaking or otherwise”; also that during the operation of the business defendant wrongfully and unlawfully appropriated and converted to his own use the sum of $2,100 from the partnership profits and assets, which he refused to repay. Defendant’s answer denied the foregoing allegations, and alleged “that it was expressly understood and agreed by and between plaintiff and defendant that commencing from the opening of the partnership business and until otherwise agreed defendant should receive and draw $40.00 per week wages and charge the same to the expense of said business. That defendant did pay himself out of the gross proceeds of said business said weekly wages from February 18, 1929, the opening day of said business, to September 3, 1929. That on or about September 3, 1929, it was agreed by and between plaintiff and defendant that thereafter defendant should draw the sum of $45.00 per week wages. That commencing September 3, 1929,' to the commencement of the above-entitled action defendant paid to himself out of the gross proceeds of said business a weekly salary of $45.00. That said weekly wages were paid to defendant with the knowledge, consent and approval of plaintiff, and that part of said wages were paid by partnership cheeks signed by plaintiff.” It was in pursuance of the issues thus tendered by plaintiff, therefore, that the court found against him and in favor of defendant; and since the appeal was taken on