McAuley v. Cooley

• Decision Date: 21 June 1895
• Docket Number: 5305
• Citation: 63 N.W. 871,45 Neb. 582
• Parties: W. S. MCAULEY ET AL. v. J. H. COOLEY
• Court: Nebraska Supreme Court

63 N.W. 871

45 Neb. 582

W. S. MCAULEY ET AL. v. J. H. COOLEY

No. 5305

Supreme Court of Nebraska

June 21, 1895

ERROR from the district court of Adams county. Tried below before GASLIN, J.

AFFIRMED.

John M Ragan, J. B. Cessna, and Capps & Stevens, for plaintiffs in error.

Dilworth Smith & Shockey, contra.

RYAN C. RAGAN, C., took no part in its consideration or determination.

OPINION

RYAN, C.

On the 12th day of October, 1888, J. H. Cooley and George A. Bentley entered into a written agreement whereby they associated themselves as partners under the firm name of J. H. Cooley & Co., for the purpose of dealing in lumber. By the terms of this agreement George A. Bentley's obligations were as follows: "The said George A. Bentley shall and he is hereby firmly bound to give all of his time and use his best efforts to promote the interest of their business. The said George A. Bentley is to keep the books of the firm in a careful and workmanlike manner and to render a just, true, and accurate account of all goods, wares, commodities, merchandise, moneys, and accounts at any time required, and to do all the work required to be done in the business as long as one man can do it, after which the expense of hiring a man shall be done equally out of the business. And George A. Bentley to be allowed to draw his personal expense a sum not to exceed forty dollars ($ 40) for each month, which amount shall be charged to his personal account and come out of his share of the profits." The plaintiffs in error, by their written undertaking in relation to the above contract, bound themselves as follows: "Whereas, on the 12th day of October, 1888, the above bounden George A. Bentley and the said J. H. Cooley entered into a copartnership for the purpose of carrying on the business of lumber and coal, etc., in the village of Holstein, in the county of Adams, and state of Nebraska: therefore, the condition of this obligation is such that if the above bounden George A. Bentley shall do and perform all the acts and requirements of the written contract entered into by and between the said parties of the above date, and shall carry out the obligations therein required of him strictly to its spirit and terms, then this obligation to be void, otherwise to remain in full force and effect." The firm of J. H. Cooley & Co. was dissolved about July 31, 1889. On the date last named it is clear from the evidence that the lumber owned by the firm was measured and an invoice made. There was a settlement made between the individual members of the firm at or about that time, and the entries in the firm books by Bentley being assumed to be correct, were acted upon by both parties as a reliable basis for a full settlement of the partnership matters. Not only was...