Iman v. Inkster

• Decision Date: 24 January 1912
• Docket Number: 16,943
• Citation: 134 N.W. 265,90 Neb. 704
• Parties: JOHN S. IMAN, APPELLEE, v. JOHN R. INKSTER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

134 N.W. 265

90 Neb. 704

JOHN S. IMAN, APPELLEE, v. JOHN R. INKSTER ET AL., APPELLANTS

No. 16,943

Supreme Court of Nebraska

January 24, 1912

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

McCoy & Olmsted, for appellants.

Charles Battelle and B. S. Baker, contra.

OPINION

ROSE, J.

This is an action at law to recover from John R. Inkster and James S Van Zant, defendants, $ 15,000, the alleged share of John S. Iman, plaintiff, in the value of the good will of the Nebraska Live Stock Company, a dissolved partnership which had been composed of the three persons named. The jury rendered a verdict in favor of plaintiff for $ 4,123.16. To prevent the granting of a new trial, plaintiff filed a remittitur for all of that sum except $ 1,000, for which judgment was entered in his favor. Defendants have appealed.

The firm had been buying and selling live stock on commissions at South Omaha. From the standpoint of plaintiff, as shown by his pleadings and proofs, defendants, during his absence on firm business and for his own pleasure, dissolved the partnership without his consent, ousted and excluded him therefrom, incorporated under the same name, continued business in the same offices, made use of the same exchange and stock-yard privileges, appropriated to themselves the good will of the partnership, and sent him a statement that they had balanced the books, paid the debts and sold the tangible assets. The account rendered by defendants showed that plaintiff owed them $ 1,743.38, but did not include in the list of assets the good will of the partnership. At the trial plaintiff did not controvert any item in their statement, but made proof of facts tending to show defendants' liability for the single item of good will omitted from the account, its value and his own share thereof.

Defendants, according to their pleadings and proofs, take the position that any partner had a right to terminate the partnership at will; that plaintiff had violated his contract with defendants by failing to devote his entire time to the business of the firm and by buying and selling stock on his own account; that by his own wrong, in thus neglecting his duties to the firm and in violating his contract with defendants, he destroyed any good will which the partnership had enjoyed; that he left the state early in July, 1908, without the consent of defendants, dissolved the partnership and abandoned any interest he might have had in the good will of the firm; that he afterward engaged in a separate business on his own account; that by a letter written in Montana and received by them July 30, 1908, he informed them that he had abandoned and dissolved the partnership; that, upon learning of such abandonment and dissolution, defendants settled the affairs of the partnership, notified plaintiff thereof and sent him a dissolution statement, which did not include good will because it was of no value; and that plaintiff by accepting that part of the settlement beneficial to him is estopped to assert his claim for good will.

The petition is assailed as fatally defective for these reasons: Final and complete settlement of the partnership affairs is not alleged. It is not shown that the action is based on a single item growing out of such a settlement, nor that there are no other unsettled accounts or unpaid debts. If there is anything wanting in these particulars, it will be found in punctilious form in the answer of defendants. A petition omitting material averments is cured by an answer supplying them. Haggard v. Wallen, 6 Neb. 271; Railway Officials & Employees Accident Ass'n v. Drummond, 56 Neb. 235, 76 N.W. 562; Beebe v. Latimer, 59 Neb. 305, 80 N.W. 904; Chicago, R. I. & P. R. Co. v. Kerr, 74 Neb. 1, 104 N.W. 49.

When the pleadings are all considered, a cause of action for plaintiff's share of the good will is stated. It is settled law in this state that the good will of a dissolved partnership is a part of the assets of the firm. Nelson v. Hiatt, 38 Neb. 478; Sheppard v. Boggs, 9 Neb. 257, 2 N.W. 370. A partner's share of the value of a single asset not included in the settlement of the partnership affairs may be recovered in an action at law. McAuley v. Cooley, 45 Neb. 582, 63 N.W. 871. The liability of defendants to plaintiff for his share of the good...