Biernan's adm'r v. Braches

14 Mo. 24

Opinion

Birch, J.,

delivered the opinion of the coiirt.

Braehes had an allowance against Biernan’s estate in the probate court, from which the administrator appealed to the circuit court, and from the judgment of the circuit court has appealed to this court.

It appeared on the trial in the court below, that the parlies had entered into copartnership on the second of October, 1848, to carry on a distillery; Biernan to furnish the land and buildings, and Braehes to advance money to carry on the business. To increase the size of the distillery buildings, Braehes was to advance to Biernan, as a loan, the sum of two thousand dollars. He was also to advance as ijusiness capital the sum of four thousand dollars; the monej’s thus advanced to carry no interest, and the land and improvements no rents. By a subsequent section of the agreement, if Braehes had to advance more than two thousand dollars for the erection of buildings, it was to be t{on the same condition as the $2000 mentioned in previous sections, without interest, and to be considered a private demand due by Bier-nan;” and by a supplemental section, added on the 8th of January following, it was stipulated that having ascertained that the $2000 originally agreed upon was insufficient for the erection of the buildings and fixtures for the distillery, Braches might commence to withdraw from the profits of the business whenever the capital thereof amounted to $4000, the whole amount expended in the erection of the buildings, and continue thus to withdraw until all the expenditures for buildings were fully paid out of the profits of the business. The original article of agreement contained the usual clauses as to the division of the profits and losses; Braches to be the manufacturing, and Biernan the active or out-door partner, for the purpose of purchasing supplies, and selling the liquors, which were'to be manufactured upon an extensive scale. It is admitted that the account here in question was for advances for building purposes, and the only point which seems to have been made in the court below, or that is here made, is whether the account is or is not so dependant upon ‘the operation and result of the partnership, as to render necessary a settlement of the partnership transactions before the commencement of such a proceeding as the present one. The circuit court thought otherwise, holding, First, That the original articles distinguish plainly between capital put in by the plaintiff for the purpose of carrying on the business — business capital — and money advanced by him to improve the intestates distillery. Second, That the latter advances were received as a loan, and continued as such, constituting an individual and separate claim against the intestate, in favor of the plaintiff, notwithstanding the modification of the original agreement, introduced by the additional article of January 8, 1849, the only effect of which alteration, as to such loans, was to render-them payable out of the profits of the business of the concern, after the business capital should have amounted to a certain sum, which mode of payment being impracticable, the plaintiff, upon the case as made in evidence, is entitled to judgment for such sum so loaned or advanced.

We are of opinion that the circuit judge took the only proper view of the law and the facts, in ruling, as he substantially did, that as the death of the defendant’s intestate prevented the partnership operations from being carried on, according to the agreement, and the money advanced for building refunded as supplementally stipulated for, the plaintiff was entitled to recover those advances in the same manner as if no partnership had ever existed. In other words, that as collateral security for the payment of these advances, the partnership had been ren-tiered inoperative by the death of the debtor partner, and that consequently the liability to which he had subjected himself to pay such advances out of the profits of an establishment of which he was to have been the active or business partner, became, if not instant and absolute at the time of his decease, at least thus absolute and uncontingent within such reasonable time, as had the business been carried on in conformity with his stipulations, the money could have been earned. There having been no such point raised as the one intimated, the presumptions are that the facts and time were with the plaintiff, so that in the most favorable aspect in which the case can be viewed for the administrator, the judgment of the circuit court was correct and must be affirmed.