Bass v. Dalton

• Decision Date: 21 January 1983
• Docket Number: No. 81-803,81-803
• Citation: 213 Neb. 360,329 N.W.2d 115
• Parties: Robert L. BASS, M.D., Appellant and Cross-Appellee, v. Kenneth R. DALTON, M.D., Appellee and Cross-Appellant.
• Court: Nebraska Supreme Court

Page 115

329 N.W.2d 115

213 Neb. 360

Robert L. BASS, M.D., Appellant and Cross-Appellee, v. Kenneth R. DALTON, M.D., Appellee and Cross-Appellant.

No. 81-803.

Supreme Court of Nebraska.

Jan. 21, 1983.

Syllabus by the Court

1. Partnerships: Accounting: Appeal and Error. An action for the dissolution of a partnership and an accounting between partners is one in equity and is reviewed in this court de novo on the record.

2. Partnerships: Accounting: Appeal and Error. Imposed upon the Nebraska Supreme Court in such a case is the duty to reach an independent conclusion without reference to the findings of the District Court, bearing in mind and according respect and weight to the trial court's superior position as the original finder of fact.

3. Contracts. Words used in a contract must be given their plain and ordinary meaning as ordinary, average, or reasonable persons would understand them.

4. Contracts. A contract must be viewed as a whole.

5. Contracts. Courts are not free to interpret contracts which are couched in clear and unambiguous language; parties are bound by the terms of a contract even though their intent may be different from that expressed by the agreement.

Donald R. Treadway of Treadway & Bird, P.C., Fullerton, for appellant and cross-appellee.

Philip T. Morgan of Morgan & Morgan, Fullerton, for appellee and cross-appellant.

KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and MORAN, District Judge.

CAPORALE, Justice.

Plaintiff-appellant, Robert L. Bass, M.D., appeals from the judgment of the District Court distributing certain partnership assets to defendant-appellee, Kenneth R. Dalton, M.D., who cross-appeals, claiming the trial court erred in directing an accounting of the partnership's income, in assessing the expenses of obtaining same to Dr. Dalton, and in the taxation of the costs of suit to him. We affirm as modified.

Dr. Bass assigns as error (1) the trial court's finding that article XVII of the agreement in question was unambiguous, and (2) the distribution of the partnership assets to Dr. Dalton without any compensation to Dr. Bass therefor.

An action for the dissolution of a partnership and an accounting between partners is one in equity and is reviewed in this court de novo on the record. Imposed upon us in such a case is the duty to reach an independent conclusion without reference to the findings of the District Court, bearing in mind and according respect and weight to the trial court's superior position as the original finder of fact. Von Seggern v. Von Seggern, 196 Neb. 545, 244 N.W.2d 166 (1976); Byram v. Thompson, 154 Neb. 756, 49 N.W.2d 628 (1951).

In 1958 Dr. Bass joined Dr. Dalton in the practice of medicine at Genoa, Nebraska, where the latter had been practicing since the mid-1940s. During the course of their relationship these two physicians entered into three agreements. The last agreement, the one in question, dated October 6, 1965, designates Dr. Dalton as the first party and Dr. Bass as the second party and, to the extent relevant here, provides as follows:

"XVI.

"It is understood and agreed that if first party shall decide to retire or in the event of his death, second party shall pay first party or his heirs $40,000.00 representing the value and entire interest of the personal property of said first party.

"XVII.

"It is understood and agreed that if said second party decides to terminate this partnership agreement or fails to perform or in the event of his death that all personal property and interests of whatever kind or nature shall revert to party of the first part.

"XVIII.

"It is understood and agreed that the party of the second part shall continue to carry and pay for personally life insurance in the amount of $20,000.00 made payable to the party of the first part and upon the death of the second party the first party will pay over to second party's wife or heirs said $20,000.00, together with an additional $20,000.00 which shall represent and pay for all of second party's interest in the business, including all personal property, accounts receivable, good will and going concern without any further accounting or obligation on the part of the first party."

Dr. Bass voluntarily left the partnership on May 31, 1980.

In his amended petition Dr. Bass sought a dissolution of the partnership, an accounting for and distribution to him of one-half of all the partnership assets, and other equitable relief. In the course of the proceedings Dr. Bass expanded, by motion, his request for an accounting to include the partnership's "interests, profits and outstanding accounts receivable as of May 31, 1980 ...."

Dr. Bass' major claim is that article XVII of...