Smith v. Jamison

Headnote

Smith v. Jamison, 170 App. Div. 78 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 1, 1915, affirming a judgment in favor of defendants entered upon the report of a referee. Arbuckle Brothers was a copartnership composed of John Arbuckle, William V. R. Smith, James N. Jarvie and William A. Jamison. It was dissolved April 4, 1906. The articles of copartnership of 1895 were then in force. The Messrs. Smith and Jarvie retired from the firm; the Messrs. Arbuckle and Jamison continued the business. Mr. Smith commenced his action for the breach of the dissolution agreement. In 1906 the firm of Arbuckle Brothers were operating under copartnership articles which provided that “the withdrawal of a partner shall not work a dissolution, but that the remaining partner shall continue the business without stoppage, or interruption, and shall pay the withdrawing partner, or his estate, his net interest in the business and in the real and personal property of the firm as of the date of his withdrawal or death.” When Smith and Jarvie retired, the four-partners made a second agreement providing that “the said Arbuckle and Jamison agree to assume, pay and discharge all debts, liabilities and obligations of the copartnership, and to assume all outstanding leases, agreements and contracts of said copartnership. The said Arbuckle and Jamison agree with the said Smith to pay him, in money, the amount of the value of his share in the partnership taken as of January 1, 1906.” Arbuckle and Jamison assumed debts to James Flood, Charles A. Edsall and William W. Kerr, being the amounts due them for services which under an agreement with Mr,

Arbuckle they had allowed to accumulate. The continuing partners charged against Mr. Jarvie’s share of the assets his share of the three salaries and against Mr. Smith his share of the three salaries. The plaintiffs contended, “first, that any contract giving Flood, Kerr and Edsall an interest in the profits of the Pittsburg business was the personal contract of John Arbuckle, and not of the firm of Arbuckle Brothers; and, second, that even if this first contention is to be determined against them, the amount of such interest in the Pittsburg profits could not be charged proportionally against the retiring partners, because of the provisions of the dissolution agreement.”