Taft v. Schwamb

• Decision Date: 30 September 1875
• Citation: Taft v. Schwamb, 80 Ill. 289, 1875 WL 8753 (Ill. 1875)
• Parties: JOSEPH W. TAFT et al.v.FREDERICK SCHWAMB.
• Court: Illinois Supreme Court

80 Ill. 289

1875 WL 8753 (Ill.)

JOSEPH W. TAFT et al.

v.FREDERICK SCHWAMB.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

This bill is filed for the purpose of obtaining a construction of the articles of co-partnership between the parties, and for an account.

Business was commenced and prosecuted until the 1st day of January, 1869, under the following:

“Articles of agreement made this 30th day of November, in the year of our Lord 1867, between Fred. Schwamb, of the city of Chicago, county of Cook, State of Illinois, of the one part, and J. W. Taft and D. R. Crego, of the same place, of the other part, witnesseth as follows:

The said parties above mentioned have agreed to become co-partners in business, and by these presents do agree to be co-partners together, under and by the firm name and style of Taft, Schwamb & Crego, in the business of manufacturing and selling picture frames, mouldings, house trimmings, turning, scroll-sawing, and all other work they may mutually agree to do, and in the buying and selling and vending all sorts of goods, wares, merchandise and commodities to the said business belonging, and to occupy as a manufactory, premises known as No. 490 South Canal street, in the city of Chicago, or such other place or places as they, the said co-partners, may deem advisable. This co-partnership to commence on the 28th day of November, A. D. 1867, and to continue for the term of thirteen months and three days, ending on the 31st day of December, A. D. 1868, and to that end and purpose the said parties above named have each delivered in as capital stock as follows: Fred. Schwamb, the building known as No. 490 South Canal street, and all machinery, including engine, boiler, tools, benches, lumber, all manufactured stock and that under process of manufacture, now in his possession, supposed to be worth say $9,619.37, the same to be determined by an inventory.

And the said J. W. Taft and D. R. Crego shall put in as capital stock the sum of $2500, making a total capital stock of about $12,119.37, to be used and employed in common between them for the support and management of the said business, to their mutual benefit and advantage.

And it is further agreed between the parties to these presents, that the said firm of Taft, Schwamb & Crego shall pay interest, annually, to F. Schwamb, on the sum of $7,119.37, or on what he may have in excess of said Taft and Crego's investment.

And it is agreed by and between the parties to these presents, that at all times during the continuance of this co-partnership, Taft and Schwamb will give their attendance, and to do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for the joint interest of the company, unless Taft's trunk business should require some of his time; if so, then Crego will spend as much of his time for the firm of Taft, Schwamb & Crego as Taft spends for the firm of Crego & Taft.

And it is also agreed, that they shall and will, at all times during said co-partnership, share, bear, pay and discharge between them, each his share of all rents and other expenses that may be required for the support and management of the said business, and that all gains, profits and increase that shall come, grow or arise from or by means of their said business, shall, after paying the expenses as aforesaid, be divided between them, the said co-partners to receive their shares as follows: F. Schwamb to receive one-half of all gains or increase, or if the business has been done at a loss, then F. Schwamb to pay one-half of all such losses; J. W. Taft to receive one-fourth of all gains or increase, or to stand one-fourth of all losses in all business transactions during said co-partnership; D. R. Crego to receive one-fourth of all gains or increase, or stand one-fourth of all losses in all business transactions during said copartnership.

And it is further agreed by and between said parties, that there shall be had and kept, at all times during the continuance of this co-partnership, perfect, just and true books of account, wherein each of said co-partners shall enter and set down, as well all money or moneys he, they or either of them receive, pay out, and expend in and about the said business; also all goods, wares, commodities and merchandise by them, or either of them, bought or sold by reason or on account of said business, and all articles by them manufactured, and all other matters and things whatsoever to said business and management thereof in any way belonging; which said books shall be used in common between the co-partners, so that either of them may have access to them without any interruption or hindrance of the others, which said books of account shall be balanced once in each month; and also said co-partners, twice in each year during the continuance of the said co-partnership, or oftener, if deemed necessary, shall make, yield or render, each to the other, a true, just and perfect inventory and account of all the profits and increase by them made, and also of all payments, receipts and disbursements, and of all other things by them made, received, or losses in said business, and the said account being so made, they shall and will adjust, pay and deliver, each to the other, at the time, their just share of the profits so made as aforesaid.

And it is further agreed between said parties, that neither of said co-partners shall draw out of the co-partnership funds a sum of money exceeding as follows: F. Schwamb, $25 per week; J. W. Taft, $12.50 per week; D. R. Crego, $12.50 per week, during the continuance of said co-partnership, for his own profit or purpose, without the consent of the others of said co-partners first had and obtained thereunto.

And the said parties hereby covenant and agree to and with each other, that, during the continuance of their said copartnership, neither of them shall or will indorse any note, or otherwise become surety for any person or persons, without the consent of the others of said co-partners.

And it is further agreed between the said parties, that if, at the expiration of said co-partnership, said Taft and Crego shall wish to continue in said co-partnership, and become equal owners in the capital stock, they can do so upon a renewal of said co-partnership. The tools, fixtures and machinery shall be put in at a discount of ten per cent from the present inventory price.

And it is further agreed between the said parties, that if, at the expiration or other determination of said co-partnership, said co-partners, each to the other, shall and will make a true and just account of all things relating to their said business, and in all things truly adjust the same, if said Taft and Crego should wish to retire from said co-partnership, they shall give to said F. Schwamb sixty days' notice to that effect, and at the end of the said sixty days they shall have the privilege of drawing out their investment, with the gains or profits in money or its equivalent, the amount of said investments and profits to be determined by an inventory, as upon the beginning of this co-partnership, everything to be inventoried at cost price and improvements added.

In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year first above mentioned.

+---------------------------+
                ¦JOSEPH W. TAFT,    ¦[seal.]¦
                +-------------------+-------¦
                ¦FREDERICK SCHWAMB, ¦[seal.]¦
                +-------------------+-------¦
                ¦D. R. CREGO.”      ¦[seal.]¦
                +---------------------------+
                

On the first of January, 1869, the following was indorsed on the foregoing recited articles of co-partnership:

“By mutual consent, the above agreement will continue until January 1, 1871, with the exception of the interest of the partners, each partner's interest to be equal; that is, each one to have one-third of all profits, if any, and stand one-third of all losses in all business transactions during the continuance of this contract, the amount drawn out by each partner to be equal.

J. W. TAFT,

FREDERICK SCHWAMB,

D. R. CREGO.”

Business was continued under this last mentioned agreement until March 3, 1870. On the 9th of August, 1869, the building, machinery, etc., were destroyed by fire.

The interlocutory decree rendered by the court, is as follows:

“This cause coming on to be heard upon the pleadings, and proofs taken herein, and after hearing the arguments of counsel for respective parties, it is ordered, adjudged and decreed, and the court, by virtue of the authority therein vested, doth find, order, adjudge and decree that the written contracts of partnership between the parties to this suit, referred to in the bill of complaint herein, and copies of which are annexed as exhibits to said bill, were duly executed by the parties to this suit, and bear date respectively, November 30, 1867, and January 1, 1869. That after the execution of said partnership contracts, and on 9th day of August, 1869, the building known as Number 490 South Canal street, and all machinery, including engine, boiler, tools, benches, particularly described in said first named written contract of co-partnership, were destroyed by fire, and but a small amount was realized from the policies of insurance placed upon said property. "And said court doth further adjudge and decree, that, under and by virtue of the said written contracts of co-partnership between the parties, and under which the business of the co-partnership therein mentioned was carried on, the property aforesaid was, at the time of its destruction by fire, the joint property of the defendants, as partners, composing the firm of Taft, Schwamb & Crego, and that the loss thus occasioned was the loss of the said firm of Taft, Schwamb & Crego, to be borne and shared equally between the said complainant and the two defendants, Joseph W. Taft and David R. Crego,...