Morrill v. Weeks

• Decision Date: 16 March 1900
• Citation: 70 N.H. 178,46 A. 32
• Parties: MORRILL et al. v. WEEKS.
• Court: New Hampshire Supreme Court

46 A. 32

70 N.H. 178

MORRILL et al.

v. WEEKS.

Supreme Court of New Hampshire. Merrimack.

March 16, 1900.

Bill by Morrill & Danforth against Rufus M. Weeks for an accounting of a partnership. Judgment for plaintiffs.

Bill in equity for an accounting. February 19, 1880, the parties bought out the insurance business of Charles W. Cilley for $250,—each contributing one-half of ' this amount—and on the same day entered into an agreement under seal for the purpose of carrying on the business. The material parts of the agreement are as follows: "In consideration whereof, the said Rufus M. Weeks hereby agrees to have the said Morrill & Danforth issue policies upon, or cause the same to be placed in companies other than their own upon, all insurance risks in which he shall become interested as agent or broker, excepting any which he may write in the New Hampshire Fire Insurance Company of Manchester, N. H., as its agent. For all policies so written in said New Hampshire Company, he hereby agrees to allow said Morrill & Danforth seven and one-half (7 1/2) per cent. commission of any and all premiums thereon collected. * * * This contract shall be in full force and effect, as between said parties, for a term of five years from the date hereof. At the termination of five years, or at any previous time, if either Morrill & Danforth or said Weeks desires to withdraw from the business arrangement herein entered into, the retiring parry shall first offer for sale his interest in the business then existing, to the party desiring to continue in the business, at a price not exceeding the yearly income of said retiring party for one year preceding the day of so offering it. * * * In case of failure to perform all the conditions herein named, or any default in payment of any moneys due from one party to the other, where a demand for same has been made by either party, the defaulting party hereby agrees to forfeit the sum of three hundred dollars to the party so injured, which amount is hereby fixed and liquidated as the amount of damages to be paid by the failing party to the other." The defendant has not accounted to the plaintiffs for premiums collected by him on policies written in the New Hampshire Company since August 1, 1883, and the plaintiffs have never before demanded an accounting. No action has been taken under the provision in respect to withdrawal by either party. When the five years terminated, the defendant ceased to place policies with the plaintiffs, and gave them no share in the premiums collected by him upon policies written in the New Hampshire Company. The plaintiffs made no complaint to or demand on the defendant respecting his failure to perform the contract, nor did they in any way intimate to him that they considered the contract as still in force, or that he was in any way holden or indebted to them on account thereof.

Streeter, Walker & Hollis, for plaintiffs. Almon F. Burbank, for defendant

YOUNG, J.The first question in construing this contract is to ascertain the time the parties intended it should continue in force, and the acts of the parties and the language of the contract furnish all the evidence we have in regard to it. These show that they intended to engage in the insurance business on joint account for the term of 5 years, unless one of them should desire to withdraw from the business within that time, and in that event a way was provided by which it might be done. This is the effect of the language, if given its usual and natural meaning; and while it is, perhaps, capable of a construction which would continue the contract in force until the parties should comply with its provisions in respect to withdrawal, this is not its natural meaning, and the acts of the parties show that this was not their understanding of it; for at the end of 5 years the defendant assumed...