Freeling v. Wood

• Decision Date: 16 May 1961
• Docket Number: No. 38601,38601
• Citation: 361 P.2d 1061,1961 OK 113
• Court: Oklahoma Supreme Court
• Parties: Nora B. FREELING, Administratrix of the Estate of Pat H. Freeling, Deceased, Plaintiff in Error, v. Otis WOOD and Jessie Ray Turner, Defendants in Error.

Page 1061

361 P.2d 1061

1961 OK 113

Nora B. FREELING, Administratrix of the Estate of Pat H Freeling, Deceased, Plaintiff in Error, v. Otis WOOD and Jessie Ray Turner, Defendants in Error.

No. 38601.

Supreme Court of Oklahoma.

May 16, 1961.

Syllabus by the Court.

1. In onstruing a written contract, the whole of the instrument is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.

2. Where a partnership agreement provides that all of the stock, fixtures, appliances and good will of the partnership shall be owned jointly and equally by the partners; and further provides that in the event of death of one of the partners, a correct inventory of the assets shall be made and the legal representative or heirs of the deceased partner shall be entitled to a proportionate share of the net value of the partnership property, the good will of the partnership is an asset and must be considered in determining the value of the interest of the deceased partner.

Appeal from the District Court of Pittsburg County; W. A. Lackey, Judge.

Action by surviving partners to establish their ownership of partnership business subsequent to death of one partner and for determination of the value of deceased partner's interest therein. From judgment for plaintiffs, the defendant appeals. Reversed and remanded with directions.

William W. Bailey, Vinita, Arnote, Bratton & Allford, McAlester, by William W. Bailey, Vinita, for plaintiff in error.

A. James Gordon, McAlester, for defendants in error.

IRWIN, Justice.

On January 11, 1946, a written partnership agreement was entered into between Otis Wood, Jessie Ray Turner and Pat H. Freeling to operate a drug store. The agreement contained a provision relating to how the surviving partners could acquire the entire business in the event of death of one of the partners.

Pat H. Freeling died on February 8, 1958, and the surviving partners tendered to the administratrix of his estate an amount determined by them to be due under the agreement for the interest of the decedent. This amount was refused by the administratrix and the surviving partners brought this action to determine the value of the interest theretofore owned by Pat. H. Freeling.

The trial court, inter alia, found and rendered judgment accordingly that (1) under the partnership agreement it was not contemplated by the partners nor did the agreement provide that good will would be considered as an asset of the partnership business in arriving at the value of the interest of Pat H. Freeling, deceased partner, and that the administratrix is not entitled to recover from the plaintiffs any amount on account of good will of the business and (2) the value of all furniture and fixtures of the partnership business as the same had been depreciated was, at the time of death of Pat H. Freeling, the fair, cash, market value of such furniture and fixtures.

Although the value of other assets of the partnership were litigated, the administratrix's appeal relates to only the two items above set forth. In this connection, she contends that (1) the good will of the partnership is an asset to the partnership property and should be accounted for and the trial court erred in not fixing the value of the good will of the partnership, and (2) the depreciated value of the furniture and fixtures is not a proper valuation to be placed upon the property.

The partnership agreement provides, inter alia, that the partnership shall be for a period of twenty years unless sooner terminated. It further provides for the cost of establishing the business and the repayment thereof until the entire amount had been paid in full. The agreement then provides, 'Thereafter the said business, and all of the stock fixtures, appliances and good will shall be owned jointly and equally by the three partners to this agreement.'

The agreement further provides how a partner could dissolve the partnership and 'on the dissolution of said partnership either party may make in writing, an offer to the other parties, of the price at which he will buy the interest of the others, or sell to them his own interest; and such other parties shall thereupon, within fifteen days, signify and elect whether they will buy or sell at such price; * * *'

Paragraph 12 provides:

'It is agreed that upon the death of a partner, the surviving partners, together with the administrator or legal representative of the estate of the deceased partner, shall cause to be made a true and correct inventory of the assets and stock of the partnership and also of the liabilities thereof, and the surviving partners shall thereupon cause to be paid to such legal representative or the heirs of the deceased partner within six months after said inventory has been completed, one-third of the net value of said partnership property, liabilities having been deducted, and shall further pay one-third of the profits accumulated since the date of the last division of profits among the partners, and such legal representative, or heirs, upon payment of said amounts, shall release and acknowledge satisfaction in writing to said surviving partners from all demands and claims of the estate of said deceased partner against said partnership. This provision shall be binding upon and extend to the heirs, executors and administrators of the parties hereto.' (Emphasis ours.)

We shall first consider the administratrix's contention that the trial court erred in holding that the value of all the furniture and fixtures as the same had been depreciated, was at the date of death of Pat H. Freeling, the fair, cash, market value of such furniture and fixtures.

The parties agreed that the matter would be tried to the court without the intervention of a jury. It is well established that in jury-waived civil law actions a judgment will not be disturbed on appeal in absence of legal errors if there is any competent evidence reasonably tending to support the trial court's conclusion. See Givens v. Western Paving Co., Okl., 261 P.2d 450.

In the instant case the trial court concluded that the fair, cash, market value of the furniture and fixtures was the same as the depreciated value. The evidence was in conflict as to the fair, cash, market value of the furniture and fixtures but there is competent evidence reasonably tending to support the trial court's conclusions. The fact that the trial court held the fair, cash, market value of the furniture and fixtures was the same as the depreciated value does not establish, nor does it indicate, that the depreciated value was not also the fair, cash, market value of the furniture and fixtures. We therefore can not sustain administratrix's contention that the trial court erred in determining the fair, cash, market value of the furniture and fixtures.

We shall now consider the contention that the trial court erred in holding...