Starr v. Case, Adm'rs

• Decision Date: 18 October 1882
• Citation: 13 N.W. 645,59 Iowa 491
• Parties: STARR ET AL v. CASE ET AL., ADM'RS
• Court: Iowa Supreme Court

13 N.W. 645

59 Iowa 491

STARR ET AL v. CASE ET AL., ADM'RS

Supreme Court of Iowa, Dubuque

October 18, 1882

Appeal from Floyd Circuit Court.

THIS is an action in equity of P. B. Starr and A. M. Harrison surviving members of the late firm of Starr, Patterson & Harrison, against the administrator and heirs at law of J. G Patterson, deceased, for an accounting of the business of said firm. The petition prays: "That this court order adjudge and decree that an account be taken and had of the said partnership dealings and transactions, between plaintiffs respectively, and said J. G. Patterson, deceased and that what shall appear therein to be due from defendants to plaintiffs respectively, may be decreed to be paid by defendants to plaintiffs respectively, and that it may be decreed that the plaintiffs have a lien to the amount that shall be found due plaintiffs respectively, on such accounting upon the interest of said J. G. Patterson in the partnership property." The court found that there was due the defendants from the plaintiffs $ 1,220.40, and that there was due the defendants from the plaintiff A. M Harrison the sum of $ 88.25 for use of library. The plaintiffs served notice of appeal "from the findings, judgment and decree of the said Circuit Court in said cause."

REVERSED.

D. J. Gibson and J. E. Owens, for appellants.

Ellis & Ellis and J. S. Root, for appellee.

OPINION

DAY, J.

I.

The appellees insist that the evidence in the cause was not certified by the judge during the term at which the cause was tried, nor during the following vacation, and hence, under the construction placed by this court upon section 2742 of the Code, the cause cannot be tried de novo. The decree was entered on the 4th day of April, 1881. The evidence was certified on the 1st day of August, 1881, which was within the time allowed for taking an appeal, and, in fact before the appeal was taken. The cause was submitted in this court on the 21st day of April, 1882. Before the submission of the cause, to-wit: March 10, 1882, chapter 35, laws of Nineteenth General Assembly took effect by publication. This chapter provided that the evidence may be certified by the judge at any time within the time allowed for the appeal of the cause. And it is expressly made applicable to all causes not already submitted to the Supreme Court. Under this statute the evidence was certified in time.

II. The decree of the court was reached through the examination of a number of distinct items of account, some of which were determined in favor of, and others adverse to, the appellants. The appellants now insist that, inasmuch as the defendants have not appealed, only those items of account are to be examined with which the plaintiffs are dissatisfied. In support of this position appellants cite and rely upon Hintrager v. Hennessy, 46 Iowa 600; Smith v. Wolf, 55 Iowa 555; Casady v. Spofford, 57 Iowa 237; Farr v. Reilly, 58 Iowa 399. Whether the facts of this case take it out of the rule of the cases above cited we need not determine. We do not find that the defendants are entitled to a reversal upon any of the points embraced in the decree. It is not, therefore, necessary that we should determine whether the defendants are in a position to insist upon a rehearing of the items determined adversely to them.

III. The co-partnership between plaintiffs and J. G. Patterson was formed on the 13th day of September, 1873. In the division of the proceeds, S. B. Starr was to receive seven-twentieths, J. G. Patterson eight-twentieths and A. M. Harrison five-twentieths. The articles of co-partnership contain the following provisions:

"It is further agreed that at all times during the continuance of their co-partnership each of said partners shall give their (his?) whole time and attendance, and will use their and each of their best endeavors, and to the utmost of their skill and ability, exert themselves for their joint interest and benefit, except such time as may be proper for the fulfilling of the duties of any office or agency held individually by either partner, and for transaction of their private business; and neither partner shall accept or continue to hold any office or agency, unless by the consent of his co-partners." At the time of the formation of the co-partnership, Harrison was a justice of the peace, and continued to hold that office during the existence of the partnership. On the 7th day of March, 1878, J. G. Patterson was appointed right of way agent for the Chicago, Milwaukee and St. Paul Railway Co., to settle right of way from Algona west, at a salary of $ 150 per month and expenses, and he continued in this capacity until his death on the 39th day of October, 1878. For his services during this period he was paid, in addition to his expenses, $ 1166. The plaintiffs claim that this sum constituted a portion of the earnings of the firm, and must be divided in the proportion of the respective interests of the partners. We think the articles of co-partnership entitle J. G. Patterson to the benefits of this employment. The articles of co-partnership except from the obligation of each partner to give his whole time and attention to the interest of the firm, "such time as may be proper for the fulfilling of the duties of any office or agency held individually by either partner." Appellants insist that the word held is in, past and present tense, and applies only to offices or agencies held by a partner when the co-partnership was formed. This we think is not the proper construction of the exception. The word held is the perfect participle of the verb hold.

"Participles have no reference to time, they simply show the action, being or state of the verb from which they are derived as finished or unfinished." See Welch's Analysis of the English Sentence, page 87. It is evident from the context that the members of the partnership contemplated their probable future as well as their present relations, when they provide, that "neither partner shall accept or continue to hold any office or agency unless by the consent of his co-partners."

The meaning of the word held is not to be determined simply from its form, but from its relation to other parts of the contract, and it must be so construed, if possible, as to give force and effect to all parts of the agreement. The word, whether considered grammatically or in relation to other parts of the contract, cannot legitimately be limited to an office or agency in the possession of one of the partners when the contract was formed, but includes any office or agency of which a partner might become possessed at any time during the continuance of the co-partnership.

The protection of the other partners is found in the provision that no partner shall accept or continue to hold any office or agency, unless by the consent of his co-partners.

Appellants lay stress upon the words "as may be proper," and insist that they qualify the reservation of time made by the individual members of the firm; that the reservation must be so construed as not to interfere materially with the main purposes for which the firm was organized, and that it is now a question for the court to determine whether the time used by Patterson was proper to be withheld from the service of the firm, and appropriated to his own use. Inasmuch, however, as the articles of co-partnership excepted to each partner so much time as might be proper for the fulfilling of the duties of any office or agency held by him, the remedy of the other partners, if dissatisfied with the amount of time devoted by one of their number to an office or agency, was, under the articles of co-partnership, to object to his continuing to hold the office or agency, or to his continuing to devote so much time to it, and, in case he persisted, to dissolve the partnership.

If, however, it should be conceded that it is a question for the court to determine whether the time used by Patterson was proper to be withheld from the firm, we have to say that we are unable to find from the testimony that he neglected the business of the firm. The evidence shows that Mr. Starr had principal charge of collections, and that Mr. Harrison had more exclusive charge of the trial business.

Mr. Harrison testifies as follows: "As a rule Mr. Patterson participated in the trials of causes in which Starr, Patterson & Harrison were employed during the years 1876, 1877 and 1878, though there were some exceptions. He rarely went to Chickasaw county, while I went there almost every term. Very frequently, he went to other counties where I didn't go; I don't now recall any case outside of Chickasaw that I tried to court and jury, when Mr. Patterson was not present. The court, we think, properly held that the plaintiffs were not entitled to a share of the earnings of Patterson as right of way agent.

IV. The plaintiffs claim that they are entitled to a share of the earnings of J. G. Patterson as Secretary of the Water Power Company. The facts respecting this employment were properly found by the court below as follows: "It appears in evidence that Mr. Patterson, in the Spring of 1876, was elected Secretary of the Water Power Co.; that he kept the books of the company and did some corresponding for the company while it was operating a grist mill, and spent some time at the mill site during the construction of the dam race and mill, advising with the superintendent of construction; that he performed these duties usually in the morning before nine o'clock, and evening after six o'clock, and sometimes attended to the books and correspondence on Sundays; but it also appears that he spent considerable time, during the construction of the mill, dam and race, at the mill site, during regular office hours, and...