O’BRIEN, J.
The theory upon which the learned referee proceeded was that the defendants Sehiffer had elected to purchase as of the 31st of May, 1893, and were bound by such election; and upon the theory of a purchase he proceeded to fix the interest of the estate of Isaías Meyer. This was the theory upon which the plaintiffs elected to try the cause, notwithstanding there were allegations in the complaint of a failure on the part of the Schiffers to comply with the provisions of the articles of co-partnership permitting them to acquire the Meyer interest, whereby they lost their right to purchase such interest, and the plaintiffs became entitled to a liquidation of the partnership, and “to receive from the assets thereof such amounts as, upon liquidation, shall be ascertained to be due them.” The position taken by the Schiffers in their answer was that they had not lost the right, and had elected to purchase pursuant to the written articles of co-partnership, giving them “the right to purchase all the right, title, and interest of the deceased partner at a valuation shown by the books of the partnership, after making the deduction of 25 per cent, from the value of the machinery as shown by the books of account.” Upon the trial, however, they insisted that, if the principle according to which they had made their estimate from the books of account and from the inventory made subsequent to the termination of the partnership was not assented to, then there should be a liquidation. Or, to state their position in the language of their counsel: “We do not object to a liquidation. * * * On the contrary, we shall insist upon a liquidation, unless we get the property at the price at which we were supposing that we bought it.” Although there is some vagueness in the attitudes assumed by the parties as shown by the pleadings, this disappeared upon the trial, when the executors elected to proceed upon the theory of a pur[678]*678chase. And the defendants took the same attitude, coupled, it is true, with the condition that the purchase was to- be in accordance with the estimate made by them. The referee therefore rightly proceeded upon the theory of a purchase to fix the price which, under the articles of co-partnership,-the defendants should pay for the interest held by the estate of Isaías Meyer. Such interest was to be purchased “at a valuation shown by the books of account,” and it is upon the construction to be given to this clause in the articles of agreement in which this language is found that the whole controversy turns.
The property and assets of the co-partnership consisted of real estate, machinery, and merchandise. With regard to the real estate, factories, and machinery, the books had entries from which a valuation could be made as provided in the articles of co-partnership. About the machinery a serious controversy arose as to whether the items or sums as shown in “suspense account” were or were not amounts which should be deducted as representing depreciation in machinery. With the referee’s reasoning and conclusions in refusing to allow a deductiofi of the suspense account we agree, but we cannot concur with his valuation of the merchandise. Such merchandise consisted of raw silk, goods in process of manufacture, and of the completed product; and for these items the referee held that the defendants should pay the market value as of the 31st of May, 1893. At that time the price of raw material was very high, and, as the raw material affected the price of the goods in process of manufacture as well as of the finished goods, the amount which the referee found the defendants should pay is nearly $200,000 more than the estimate made by the defendants upon their view that they were entitled to purchase at cost, or, with respect to merchandise other than the raw silk (the cost of which could be exactly ascertained), as approximately thereto as possible. It is evident, then, that the question is whether-or not the price to be paid by the Schillers is to be predicated upon the value of the merchandise as of the date when they elected to purchase or at the cost price. Differently expressed, the question resolves itself into a determination as to which was the proper method of procedure for the purpose of determining the valuation according to the books. Upon the entrance of the Schillers into the partnership, the merchandise was taken at cost, and thereafter the inventories as made and as presented to the executors were based on the same method. At the date of the purchase, although the books did not then show just what the cost was, the inventory subsequently made (which followed the methods used throughout the partnership) determined the valuation by taking the average cost during the previous year. It is true that neither this method of the past bookkeeping of the firm nor the inventory made after its dissolution was conclusive upon the executors, because, although having the right to be present, they did not directly participate in fixing the values. But the circumstances are significant as showing the theory upon which the Schillers were proceeding, and that they had in mind the failure of the executors to object at any time to this manner of fixing value. And there is much force in the position which the [679]*679Schiffers took at the very outset, and consistently maintained during the entire trial, that, if their theory of valuation were not to be applied, then there should be a liquidation of the co-partnership, because the minds of the parties never met. The learned referee, however, rejected the valuation reached, which was predicated upon the method followed in keeping the books of the partnership from its inception, with the knowledge of Meyer in his lifetime and of his executors after his death; and in lieu thereof accepted and acted upon evidence outside the books for the purpose of fixing the value as of the 31st of May, 1893. The evidence shows that the price of raw silk advanced very considerably from the fall of 1892 to the spring of 1893; and while the respondents argue that it would be unjust to make no allowance for this increase in determining the value of the property on May 31st, the Schiffers contend that it would be equally unjust to estimate the stock at a large advance on what it cost, and thus compel them to take it at a price greater than they could obtain in case of depreciation before they could make up and sell the goods. In this connection the appellants call attention to the fact that a great decline in prices did take place, beginning in June, and continuing during the remainder of the year.
These considerations, however, do not aid us much in reaching a conclusion as to the real meaning of the word “valuation” in the contract. That the Schiffers did not understand it to mean market value, we think appears from what we have already said about the manner of keeping books. Furthermore, if market value was intended, the books would not be likely to show it, for, until a sale, such value could not be ascertained; and, when sold, the goods would cease to be the subject of valuation. In other words, as soon as market value is taken as the standard, it is at once necessary to depart from the books. ' The word “value” is not used, but “valuation,”—an estimation, to be made upon the basis of the books,— which indicates that an estimated value as between the partners, shown upon the books, is to govern. This view seems to be borne out by the fact already referred to that it was agreed in the articles of co-partnership that the value of the goods contributed by Meyer was “to be ascertained by an inventory to be taken at actual cost ” and also by the fact that from this time on all inventories were made in this way.
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O’BRIEN, J.
The theory upon which the learned referee proceeded was that the defendants Sehiffer had elected to purchase as of the 31st of May, 1893, and were bound by such election; and upon the theory of a purchase he proceeded to fix the interest of the estate of Isaías Meyer. This was the theory upon which the plaintiffs elected to try the cause, notwithstanding there were allegations in the complaint of a failure on the part of the Schiffers to comply with the provisions of the articles of co-partnership permitting them to acquire the Meyer interest, whereby they lost their right to purchase such interest, and the plaintiffs became entitled to a liquidation of the partnership, and “to receive from the assets thereof such amounts as, upon liquidation, shall be ascertained to be due them.” The position taken by the Schiffers in their answer was that they had not lost the right, and had elected to purchase pursuant to the written articles of co-partnership, giving them “the right to purchase all the right, title, and interest of the deceased partner at a valuation shown by the books of the partnership, after making the deduction of 25 per cent, from the value of the machinery as shown by the books of account.” Upon the trial, however, they insisted that, if the principle according to which they had made their estimate from the books of account and from the inventory made subsequent to the termination of the partnership was not assented to, then there should be a liquidation. Or, to state their position in the language of their counsel: “We do not object to a liquidation. * * * On the contrary, we shall insist upon a liquidation, unless we get the property at the price at which we were supposing that we bought it.” Although there is some vagueness in the attitudes assumed by the parties as shown by the pleadings, this disappeared upon the trial, when the executors elected to proceed upon the theory of a pur[678]*678chase. And the defendants took the same attitude, coupled, it is true, with the condition that the purchase was to- be in accordance with the estimate made by them. The referee therefore rightly proceeded upon the theory of a purchase to fix the price which, under the articles of co-partnership,-the defendants should pay for the interest held by the estate of Isaías Meyer. Such interest was to be purchased “at a valuation shown by the books of account,” and it is upon the construction to be given to this clause in the articles of agreement in which this language is found that the whole controversy turns.
The property and assets of the co-partnership consisted of real estate, machinery, and merchandise. With regard to the real estate, factories, and machinery, the books had entries from which a valuation could be made as provided in the articles of co-partnership. About the machinery a serious controversy arose as to whether the items or sums as shown in “suspense account” were or were not amounts which should be deducted as representing depreciation in machinery. With the referee’s reasoning and conclusions in refusing to allow a deductiofi of the suspense account we agree, but we cannot concur with his valuation of the merchandise. Such merchandise consisted of raw silk, goods in process of manufacture, and of the completed product; and for these items the referee held that the defendants should pay the market value as of the 31st of May, 1893. At that time the price of raw material was very high, and, as the raw material affected the price of the goods in process of manufacture as well as of the finished goods, the amount which the referee found the defendants should pay is nearly $200,000 more than the estimate made by the defendants upon their view that they were entitled to purchase at cost, or, with respect to merchandise other than the raw silk (the cost of which could be exactly ascertained), as approximately thereto as possible. It is evident, then, that the question is whether-or not the price to be paid by the Schillers is to be predicated upon the value of the merchandise as of the date when they elected to purchase or at the cost price. Differently expressed, the question resolves itself into a determination as to which was the proper method of procedure for the purpose of determining the valuation according to the books. Upon the entrance of the Schillers into the partnership, the merchandise was taken at cost, and thereafter the inventories as made and as presented to the executors were based on the same method. At the date of the purchase, although the books did not then show just what the cost was, the inventory subsequently made (which followed the methods used throughout the partnership) determined the valuation by taking the average cost during the previous year. It is true that neither this method of the past bookkeeping of the firm nor the inventory made after its dissolution was conclusive upon the executors, because, although having the right to be present, they did not directly participate in fixing the values. But the circumstances are significant as showing the theory upon which the Schillers were proceeding, and that they had in mind the failure of the executors to object at any time to this manner of fixing value. And there is much force in the position which the [679]*679Schiffers took at the very outset, and consistently maintained during the entire trial, that, if their theory of valuation were not to be applied, then there should be a liquidation of the co-partnership, because the minds of the parties never met. The learned referee, however, rejected the valuation reached, which was predicated upon the method followed in keeping the books of the partnership from its inception, with the knowledge of Meyer in his lifetime and of his executors after his death; and in lieu thereof accepted and acted upon evidence outside the books for the purpose of fixing the value as of the 31st of May, 1893. The evidence shows that the price of raw silk advanced very considerably from the fall of 1892 to the spring of 1893; and while the respondents argue that it would be unjust to make no allowance for this increase in determining the value of the property on May 31st, the Schiffers contend that it would be equally unjust to estimate the stock at a large advance on what it cost, and thus compel them to take it at a price greater than they could obtain in case of depreciation before they could make up and sell the goods. In this connection the appellants call attention to the fact that a great decline in prices did take place, beginning in June, and continuing during the remainder of the year.
These considerations, however, do not aid us much in reaching a conclusion as to the real meaning of the word “valuation” in the contract. That the Schiffers did not understand it to mean market value, we think appears from what we have already said about the manner of keeping books. Furthermore, if market value was intended, the books would not be likely to show it, for, until a sale, such value could not be ascertained; and, when sold, the goods would cease to be the subject of valuation. In other words, as soon as market value is taken as the standard, it is at once necessary to depart from the books. ' The word “value” is not used, but “valuation,”—an estimation, to be made upon the basis of the books,— which indicates that an estimated value as between the partners, shown upon the books, is to govern. This view seems to be borne out by the fact already referred to that it was agreed in the articles of co-partnership that the value of the goods contributed by Meyer was “to be ascertained by an inventory to be taken at actual cost ” and also by the fact that from this time on all inventories were made in this way.
The argument of the respondents that it is inequitable to compel them to be bound by an inventory made by the Schiffers must fall if the view is maintainable that the method pursued in making the inventory was one sanctioned and provided for in the original agreement between the parties, and in the absence of any fraud or mistake as to the quantities in the inventory made. And the same answer applies to the objection raised by the respondents that the last inventory was made after the termination of the partnership. The books did not show, on May 31, 1893, the valuation of the property, and the agreement does not confine the appellants to the books as they existed on that date. The only reasonable construction of the contract is that the books as finally written up in the ordinary course, with all entries in them, should determine the question, If [680]*680there was nothing wrong in the method pursued during Meyer’s lifetime and down to the termination of the partnership, there was nothing wrong in pursuing the same method in making up the inventory after the partnership had terminated.
Necessarily, the discussion which we have entered upon in reference to the raw material governs also to a large extent the valuation of the completed goods, and those in process of manufacture. In both of these, also, thé referee rejected the cost of the raw material entering into their composition, and held that the market value should be considered. Difficulty would necessarily arise in tracing the exact nature and quantity of the raw material used in the goods manufactured and in process of manufacture. What it was necessary to ascertain, however, upon the basis we are now discussing, was the cost of such material plus the cost of manufacture; and the method suggested by the appellants of taking the average cost of raw material during the year previous to May 31, 1893, appears to be as accurate as any that could be devised. In the method pursued by the referee, the difficulty as to ascertaining cost price was avoided, for the reason that he determined the valuation by taking the market value of the raw material on May 31st, and adding, in the case of wholly and partly manufactured goods, the cost of manufacture. Evidently, any method used as to goods in process would also be applicable to manufactured goods.
We do not go to the extent of holding that the executors are bound by the method adopted by the Schiffers in keeping their books; but, if not so bound, then there should have been a liquidation, for we do not think it was competent for the referee, any more than it would be for this court, to compel the Schiffers to pay for the property in a manner other than as provided by the articles of co-partnership. As correctly argued by the appellants, if they' were not entitled to purchase at a valuation shown by the books, they were not entitled ¿o purchase at all. If the method on which they based their election— a method which was used in the bookkeeping of the firm, with the knowledge of all the parties throughout the partnership—cannot be sustained, and there appears no method of valuation shown by the books, then a liquidation should follow. Differently expressed, if the election to purchase on the basis of a valuation to be ascertained in a particular way, by a method followed by the Schiffers, was not to govern, and was not binding on the executors, then the minds of the parties never met. If unjust to hold the executors to the estimate so made by the Schiffers, then equally unjust would it be to allow the executors to substitute another and entirely new method of bookkeeping, and, by holding that to be binding on the Schiffers, compel them to pay on a valuation never contemplated by them, and to which, had they known of it, they would never have assented or agreed to purchase. Their position, consistently maintained, was that they elected to purchase on the basis that the method of valuation as shown by the past method of bookkeeping was to govern on the final accounting, but, if not, then that there should be a liquidation. Such a position, we think, they were legally entitled to take, and the failure to recognize it by the referee [681]*681necessitates a reversal of the judgment and order appealed from, and a new trial before another referee, with costs to appellant to abide the result. All concur.