Barnes v. Sim

114 N.W. 154, 80 Neb. 211, 1907 Neb. LEXIS 43

• Court: Nebraska Supreme Court
• Decided: December 5, 1907
• Docket: No. 14,977
• Status: Published

Opinions

Duffie, C.

In November, 1904, J. F. Renfro sold to Wallace W. Barnes a half interest in a drug business which Renfro was then conducting in the village of Peru, Nemaha, county. Partnership articles were also executed between tlie parties, by the terms of which Barnes became a partner in the business, was to conduct the same, and receive a salary of $60 a month, payable out of the funds of the partnership. The partnership articles also contained a stipulation providing for the payment by Barnes of $45 quarterly, beginning. April 1, 1905, with interest at 6 per cent, per annum, until the full sum of $564.83, the consideration to be paid by him for his half interest in the business, was paid. No lien on the property sold was reserved by Renfro, who accepted 'Barnes’ agreement to pay the amount. This partnership agreement Renfro assigned to his wife by indorsing thereon the following: “I hereby assign all my interest in the above property to Maud E. Renfro of Peru, Nebraska, this 5th day of October, 1905.” June 2, 1906, Mrs. Renfro assigned her interest to the defendant Sim by an instrument reading as follows: “I hereby assign .for a valuable consideration all my rights, title and interest in and to a certain contract entered into November 1, 1904, by and between J. F. Renfro and Wallace W. Barnes, and assigned by J. F. Renfro to Maud E. Renfro.” Barnes was unwilling to accept Sim as a partner in the business, and on June 7,1906, commenced this action making Sim and Maud E. Renfro parties defendant, alleging that Mrs. Renfro still claimed an interest in the partnership agreement entered into between him and J. F. Renfro; asking that an accounting be had between the parties plaintiff and defendant; that their respective interests be determined; that a receiver be appointed to wind up the business; that the business be sold by the receiver, and the proceeds be divided among the parties to the action according to their respective interests. Mrs. Renfro filed an answer, the material allegations of which are to the effect that, in her sale and assignment to Sim, the agreement of Barnes to pay the consideration for his purchase of one-half the stock was not included; that she was the owner of the debt owing by Barnes, and entitled to collect the amount still clue thereon. Sim claimed that the assignment to him carried the amount still due from Barnes on his purchase of a half interest in the business. The district court found “that said obligation of the said plaintiff Barnes for one-half the purchase price of the stock of drug's did not pass by the assignment of said contract, but remained and belonged to the defendant Renfro, and that she is entitled to the relief asked for in her cross-petition.” A decree to that effect was entered, from which the defendant Sim has appeal ed-

The following opinion on motion for rehearing was filed October 8, 1908. Opinion, modified. Rehearing denied:

1. Contract: Construction. Contract of assignment examined, and field, under the evidence, to fall within the provisions of section '341 of the code, which provides that, “when the terms of an agreement have been intended in a different sense by the parties to, it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” 2. Syllabus in Barnes v. Sim, ante, p. 211, modified.

it is evident the court found that the assignment from J. F. Renfro to Mrs. Renfro did not include the personal obligation of Barnes to pay the sum of $564.83, the purchase price of a half interest in the business; that such assignment only conveyed J. F. Renfro’s interest in the property of the firm. This being so, Mrs. Renfro’s assignment of her right, title and interest in the contract would convey to Sim a one-half interest in the partnership property only, and did not carry the personal obligation of Barnes for the payment of the consideration of his purchase of a half interest in the business.

We think that this is the proper construction-of the two assignments above set out, and that the judgment appealed from should be affirmed. We so recommend.

Epperson and Good, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment appealed from is

Affirmed.