Kerlin v. Young
| Decision Date | 15 October 1924 |
| Docket Number | 4359,4360. |
| Citation | 125 S.E. 204,159 Ga. 95 |
| Parties | KERLIN v. YOUNG. YOUNG v. KERLIN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where written articles of partnership provided that the interest of the partners in the firm business, assets, and profits "shall be in proportion to the amount of cash invested by each, which is as follows: R. O. Kerlin, seven-eighths (7/8) or $35,000.00, and R. G. Young, one-eighth (1/8) or $5,000.00"--and that, if Young should become dissatisfied, or if Kerlin should become dissatisfied with Young, or should Young desire to withdraw, or should Kerlin desire that Young should withdraw, "the only amount which he can receive upon his withdrawal at his own election or at the request" of Kerlin, and where, prior to the execution of the articles of partnership, Young was engaged in a business similar to a portion of the business which the partnership was to conduct and where Kerlin became dissatisfied with Young, and requested Young to withdraw from the partnership, which Young did, in a suit brought by Young against Kerlin to recover the sum of $5,000 which he alleged he had put into the partnership, evidence tending to show that prior to the execution of the articles of partnership, and pending negotiations which led up to their execution, it was agreed between Young and Kerlin that Young's machinery equipment, and stock on hand then owned and used by Young in the conduct of his individual business should be accepted by the partnership as Young's one-eighth contribution to the capital of the firm, or at the valuation of $5,000, was properly admitted over the objection that it tended to add to, vary, and contradict the written articles of partnership it appearing that Young's machinery, equipment, and stock were received by the partnership as Young's contribution to its capital, Young contending that it was so received unconditionally at a valuation of $5,000 and in full payment of his one-eighth interest in the firm, and Kerlin contending that he agreed to take such property at $5,000, provided it was worth that sum.
An amendment to the petition of Young, praying that, in the event it was found that he had not contributed assets of the value of $5,000, he be permitted to recover the reasonable market value of the equipment which he delivered to the firm was not subject to demurrer on the ground that it set up a new and distinct cause of action.
It was not error to overrule an exception to the finding of the auditor to whom the case was referred that, "if the property delivered by Young was of less value than $5,000 and was not accepted as of that value by the defendant for the firm, the plaintiff was entitled to recover the value of the articles actually turned over by him to the firm."
The verdict of the jury is supported by evidence.
Having affirmed the judgment of the court below on the main bill of exceptions, it becomes unnecessary to deal with the errors complained of in the cross-bill.
Additional Syllabus by Editorial Staff.
The word "cash" means money or its equivalent; usually ready money.
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Suit by R. G. Young against R. O. Kerlin. Judgment for plaintiff, and defendant brings error, and plaintiff assigns cross-error. Affirmed on main bill of exceptions; cross-bill dismissed.
Young brought suit against Kerlin, and made the following allegations: On June 8, 1920, petitioner and Kerlin entered into a partnership contract, in which it is recited that Kerlin is the owner of the business known as the Overland-Kerlin Company, located at 444 Whitehall street, in Atlanta; that Young desires to have an interest in said business and to be employed by Kerlin in the same; that the name of said firm shall be the Overland-Kerlin Company; that the business in which said firm is to engage is buying and selling automobiles and automobile accessories, and repairing automobiles; that "the interests of the parties in the said firm business, assets, and profits shall be in proportion to the amount of cash invested by each, which is as follows: R. O. Kerlin seven-eighths (7/8) or thirty-five thousand ($35,000.00) dollars, and R. G. Young one-eighth (1/8) or five thousand ($5,000.00) dollars"; that the loss of said business shall be borne in the same proportion as the profits are shared, and the expenses shall be borne in like manner, and, in view of the fact that Kerlin "owns the majority interest in said business and assets, that he shall have control of the management and operation of said business," and Young is not to incur any debts in the name of the firm, but all obligations thereof are to be made by Kerlin; "that each of the parties hereto are to devote their whole time and attention to the operation and management of said business"; that Young is to have charge, subject to the general supervision of Kerlin, of all of the repair department, and Kerlin shall have charge of the buying and selling, and of the office and finances of said firm; "that in the event" Young "shall become dissatisfied," or if Kerlin shall "become dissatisfied with" Young, or should Young desire to withdraw from the business, or Kerlin desire him to withdraw, "the only amount which he can receive from said business upon his withdrawal at his own election or at the request of the party of the first part [Kerlin] shall be the amount he has paid into said business, viz., five thousand ($5,000.00) dollars, and that he shall not be entitled to any of the accretions or profits of said business except so long as he remains in said business, and so long as his money remains in said business; and that, while his capital is used therein, he shall receive profits from time to time in proportion to the amount he has invested as herein set forth." It was further agreed "that the parties hereto shall have the privilege of drawing a salary of not more than two hundred fifty ($250.00) dollars per month each, which said salaries shall be charged to the expense account of said business." Petitioner does not know how much Kerlin paid into said partnership, but he was to pay therein $35,000 in cash. The partnership business began on or about June 15, 1920, and continued until August 16, 1920, when Kerlin became dissatisfied with petitioner as a partner, and demanded that he withdraw from said business, which he then and there did. During the existence of the partnership Kerlin had charge of the books thereof, and for this reason petitioner is unable to say whether or not the firm made any profits in the operation of said business. Kerlin told petitioner when he withdrew that the partnership was operating at a loss. Under said contract petitioner was to receive $5,000 from the partnership in case he voluntarily withdrew therefrom, or in case Kerlin requested him to withdraw. He has demanded from Kerlin an accounting and settlement based upon the contract, but Kerlin fails and refuses to account to him for said $5,000. Kerlin is continuing the business of the partnership, using its assets for that purpose, and the same is being carried on at a loss. The petitioner prayed, for an accounting and settlement between the partners; for a receiver to take charge of the assets of the firm, dispose of them, and wind up its affairs; for a judgment against the defendant for $5,000 or in such sum as may be found due petitioner; and for general relief.
Kerlin answered the petition, and alleged that Young did not comply with his part of the contract by paying into said firm the sum of $5,000 in cash, but represented to Kerlin that he had between $5,000 and $6,000 worth of shop equipment, tools, and materials, which he would put into the business at a valuation of $5,000. This equipment was delivered at the place of business of the firm. Young showed the same to Kerlin, and asked him what he thought of it. Kerlin replied that he was not familiar with the prices of equipment of that kind, and did not know what its value was. He requested Young to make out an itemized list of the material he proposed to furnish, showing its value. Young promised to do this, but put off so doing for some time. Kerlin again demanded, and Young furnished, this list, but it did not show in detail the worth of the items. Young furnished a general statement they were worth $5,000. Kerlin did not accept this as conclusive or binding, but temporarily accepted such statement until Young could furnish an itemized list thereof. Young never did itemize the list of articles, and Kerlin was never able to get from him their detailed value. At his own expense Kerlin had these materials itemized, and alleges that the materials furnished by Young were worth $834.60, and no more, which sum Kerlin is ready and willing to pay to Young, and has offered to pay the same to him, and makes a continuing tender thereof. Kerlin offered to deliver to Young the property furnished by him, except such articles as had been used, for which he agreed to pay cash, and Young refused to take said property in payment. Young arbitrarily demanded payment of the sum of $5,000 cash, which Kerlin refused to pay, because Young had furnished materials worth considerably less than $1,000.
The case was referred to an auditor, who made a report of his findings...
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