Movern v. Scharabon

189 N.W. 578, 153 Minn. 56, 1922 Minn. LEXIS 731

• Court: Supreme Court of Minnesota
• Decided: July 21, 1922
• Docket: No. 22,907
• Status: Published

Opinions

Quinn, J.

Respondent filed a claim against the estate of Joseph Scharabon, deceased, claiming one-half of the net earnings of the partnership business conducted with decedent. The probate court allowed the claim and an appeal was taken to the district court where pleadings were framed, the issues tried, findings made and judgment ordered in favor of the claimant for the major part of his claim. From an order refusing to amend the findings and denying a motion for a new trial, the executrix appealed.

On August 1, 1919, respondent and appellant’s testator, Joseph Scharabon, entered into an agreement whereby they formed a partnership for the purpose of carrying on a brokerage businéss, such as selling steamship tickets, foreign exchange, buying and selling bonds, etc. By the terms of the agreement Scharabon was to devote his entire time to the business and respondent was to give his noon hours and evenings thereto. Each was to share equally in the net earnings. The partnership continued until the time of Scharabon’s death on January 15, 1920. The net earnings amounted to about $1,837.17. Paragraph 3 of the agreement provides as follows:

“For the services performed by each party hereinbefore named, it is understood and agreed between said parties that they shall equally share the profits and the losses of said business, except from the commission from the moneys to be sent to the old country by Joseph Scharabon’s old customers, in which commission John Movern, party of the second part, shall have no share. The old Joseph Scharabon’s customers shall be classed those persons who were sending moneys to the old country through Joseph Scharabon during the years 1917 and 1918.”

The determination of the issues depends upon the construction to he placed upon the portion of the agreement above set forth. Joseph Scharabon was an Austrian by birth. He was engaged for many years in the saloon business at Duluth. As a side line he carried on the business of foreign exchange and the selling of steamship tickets. He stood well among his countrymen and did a large business with them. At the time here involved he had ceased to be in the saloon business. Respondent is a Slovenian and speaks and writes that language. He drew up the agreement in question, and had a large mailing list of Austrians to whom letters could be sent, soliciting exchange business. It is contended on behalf of the appellant that customers secured in this way would be new customers in whose business plaintiff was to share, while it is claimed on behalf of the respondent, that the words “Joseph Scharabon’s old customers” as used in the agreement, had reference to the customers who had bought foreign exchange during the years 1917 and 1918 only, and did not include those who became customers in prior years and failed to make remittances during the two years mentioned.

In construing the agreement, the trial court held that the “old customers” referred to were those who bought exchange from Scharabon during 1917 and 1918, and did not include those who became customers in prior years and failed to make remittances during the two years mentioned. The court also found that there were but four of such 1917-1918 customers who purchased exchange from the partnership, and that the commission received thereon amounted to $118.60, which should be deducted from the net amount received by the partnership before the division thereof, leaving the sum of $1,718.57, of which respondent is entitled to one-half, less the sum of $42.50 which he had formerly received, and directed judgment in his favor for $816.78, with interest from February 10, 1921, together with costs and disbursements. We think the construction placed upon the contract by the trial court was entirely correct.

It is manifest that all the parties intended by the last provision of the contract above quoted, was to clearly designate the “old customers” to be excluded in the division of profits. It cannot be construed as nullifying what precedes it.

Affirmed.