We are to determine on this appeal (1) whether appellant, as executrix of and the sole beneficiary in the will of Dr. G.P. Sanderson, her deceased husband, is the owner of a one-third or a one-sixth interest in the assets of the Vicksburg Clinic, a partnership, of which Dr. Sanderson was a member at the time of his death October 30th, 1941; and (2) who, as between appellant and appellees, Drs. Knox and Parsons, is the owner of seventy-five shares of stock in the Vicksburg Hospital, Inc.
The chancellor decreed appellant to be the owner of a one-sixth interest in the Clinic and appellees to be the owners of the stock.
The guiding lights are rather dim. We must determine the questions from a construction of two contracts made between Dr. Sanderson and appellees, the circumstances surrounding their making and subsequent developments thereunder.
Does appellant own a one-third or a one-sixth interest in the Clinic? We limit the ownership to those alternative percentages because counsel for the parties so limit the question on this appeal; otherwise a one-fourth interest might enter into the question.
On March 1st, 1939, Drs. Sanderson, Knox and Parsons were all engaged in the practice of medicine in Vicksburg, *Page 884 Mississippi. The latter two were also surgeons. It is not clear whether Dr. Sanderson was also a surgeon. Drs. Knox and Parsons and one Dr. Robert operated the Vicksburg Clinic, a partnership, but all the assets appear to have been owned by Knox and Parsons. There were several other doctors employed by the Clinic, receiving designated monthly salaries for their services, but they were not partners therein. On that day Drs. Knox, Parsons and Robert, as first parties, entered into a lengthy written agreement with Dr. Sanderson, as second party, under which Dr. Sanderson became a partner in the Vicksburg Clinic. The contract provided for joint operation of the Clinic by these four doctors, and each was to give his entire time and services to the partnership, except such practice as he might do for his immediate family; each partner was to keep an accurate daily account of the services performed, and the fees and charges therefor, and that all fees and charges and money should be collected by, and handled through the books of, the Clinic, which books should be open to the partners at all times; that the equipment and accounts receivable of the parties would be "pooled," with some named exceptions. It then provides for the compensation of the parties to the contract and certain employees of the partnership, the provision here pertinent reading as follows: "18. That the compensation of the said Dr. G.P. Sanderson shall be computed and paid monthly in the following manner; On the first Three Thousand ($3000.00) Dollars net collected per month by the said Vicksburg Clinic, the said Dr. G.P. Sanderson shall receive one-sixth or 16 2/3 per cent and Dr. W.H. Parsons and Dr. I.C. Knox to share the remainder of the net proceeds collected from the said Clinic as may be mutually agreed between them, or as provided by any contract that may be in existence at the time of the execution of this partnership agreement providing for division of fees or other income derived from the said Clinic; of the next $1000.00 net collected, or fraction thereof, the said Dr. G.P. Sanderson is to receive *Page 885 twenty-five per cent and the said Dr. I.C. Knox and W.H. Parsons are to receive the remainder to be divided between them on the same basis as applied to the division of the balance of the first Three Thousand ($3000.00) Dollars; all net collections of the Vicksburg Clinic over and above Four Thousand ($4000.00) Dollars shall be divided equally between the said Dr. I.C. Knox, Dr. W.H. Parsons and Dr. G.P. Sanderson."
Dr. Robert later withdrew from the partnership and disappears therefrom and his relation thereto has no bearing on the question under consideration. The partnership, by express terms of the agreement, was to terminate December 31st, 1942.
Dr. Sanderson contributed to the partnership at the time of its formation accounts receivable in the sum of $5,593.58 and Drs. Knox and Parsons such accounts in the aggregate of $91,647.63. The respective actual values of these accounts is not shown. No other assets were contributed by either party.
The agreement was faithfully carried out by all parties until the death of Dr. Sanderson October 30th, 1941. It lasted thirty-two months, during which these three doctors were paid by the Clinic the total sum of $98,259.36. In eighteen months of this period the disbursements were more, and in fourteen months thereof were less, than $3,000, the monthly average for the thirty-two months being $3,070.60. Presumably, although the record does not show, the disbursements to the individuals were in accordance with the terms of the contract.
At the time of the death of Dr. Sanderson the only assets of the partnership were outstanding accounts receivable aggregating $108,163.58. These were valued by the appraisers at $28,889.47. Dr. Parsons was appointed administrator of the partnership assets on the death of Dr. Sanderson. During the fourteen months before the filing of this bill he had collected of these accounts a total of $20,025.07, during which time the monthly collections, except for one month, never exceeded $3,000. No point *Page 886 is here made on the excess over $3,000 for that one month. Of such total collections Dr. Parsons, as such administrator, has paid to appellant one-sixth, which she has accepted without prejudice to her rights herein. This leaves outstanding uncollected accounts of the Clinic of approximately $88,000, the estimated value of which is not shown in this record.
We have given careful consideration to the contentions made on this appeal by both parties, and, without undertaking to detail them, have concluded that appellant owns a one-sixth interest in this partnership. It is true, as appellant urges, the contract speaks of the relation as that of partners and says they are pooling the assets; that the parties had equality of control and management, yet these things, while persuasive, do not necessarily determine the respective ownership of the parties in the assets of the partnership. It is also a correct principle of law, as she contends, that "In the absence of competent evidence of an agreement to the contrary, partners are presumed to have equal interest in the firm . . .," 47 C.J. Sec. 222, pg 782; Randle v. Richardson, 53 Miss. 176, but it is also stated in that same section ". . . partnership contracts providing for unequal or particular interests will contol." We think the contract, supplemented by the acts of the parties, does that in this case. It provided that Dr. Sanderson should receive a smaller percentage of compensation than Drs. Knox and Parsons, under the method of making collections and doing business and contemplated by the parties. Had Dr. Sanderson lived, his compensation, based upon the monthly distributions made during his life, would never have amounted to an equal interest with that of Drs. Knox and Parsons. We do not think his death vested in his estate a greater interest than he himself would have received while living and contributing his services to the partnership. But supplementing this contract is the very important fact that Drs. Knox and Parsons contributed to the partnership accounts of the aggregate face value *Page 887 almost seventeen times greater than did Dr. Sanderson. The accounts receivable so placed in the partnership were all for services of these doctors in the same vicinity and we may fairly assume were of about equal average collectability. The partnership, by the terms of the contract, was to expire December 31st, 1942. Thus the excess contribution to assets by Drs. Knox and Parsons was to inure to the benefit of Dr. Sanderson in three years and ten months, but by his death did so inure within a period of two and two-third years. The conclusion we have reached is, we think, not only justified by the contract and the facts, but is just and equitable. We affirm the chancellor on this question.
On the question of the ownership of the stock, Drs. Sanderson, Knox and Parsons, concurrently with and as a part of the partnership agreement, entered into the stock agreement the reporter will set out in full.1 *Page 888
The Hospital then had outstanding 471 shares of stock, all non-income bearing, of which Dr. Knox and his family owned 254 1/2 shares and Dr. Parsons and his family owned 140 1/2 shares. On the execution of the stock agreement Dr. Sanderson paid Drs. Knox and Parsons each $1,250 for twenty-five shares of stock, and executed the notes for the deferred payments for the other seventy-five shares of stock mentioned in the contract. He paid the installments due one and two years after the date of this contract. When he died seventy-five shares of the stock of the Hospital stood in his name on the books of that corporation. *Page 889 After the execution of this agreement two insurance policies, each for $2,500, were taken out on the life of Dr. Sanderson in the Equitable Life Assurance Society of the United States, both payable to Mrs. Sanderson, his wife, the appellant. The dates of these policies are not shown in the record. However, they were in force on the death of Dr. Sanderson and apparently have been collected by the beneficiary therein. It also appears that the Clinic paid the premiums on these policies, but the last quarterly premium, paid October 7th, 1941, was refunded to the Clinic by the Hospital October 17, both the payment and the refund being made after Dr. Sanderson *Page 890 had gone to the Hospital during his last illness. It is claimed by appellant that Dr. Sanderson had assumed the payment of the premiums on these policies, but the record does not substantiate that claim. However, it is also shown that sometime during the summer of 1941, by agreement of all parties, another insurance policy was taken out on the life of Dr. Sanderson for $7,500 in the Provident Life and Accident Insurance Company payable to the Hospital as beneficiary. This policy was in force when Dr. Sanderson died. It was the practice of the Hospital to carry insurance on the doctors owning its stock, and by this method retire its outstanding stock. It appears clear that the Provident policy was taken out to replace the Equitable policies insofar as the Hospital and Clinic were concerned and to increase the insurance $2,500, in accordance with the contract provision to so increase it, as the annual notes were paid, Dr. Sanderson having paid $7,500 to that time. Dr. Knox, as a witness, made this very frank statement: "The agreement was that we were to sell to Dr. Sanderson fifty shares of stock each, and that this would be payable $1250 a year to each of us, and each year he would take out $2500.00 insurance to cover this stock, provided a reasonable rate could be secured, . . . that reasonable rate was not secured, as you understand, although we agreed to it, and for two years we went along with the Equitable policies — two years $2500.00 each year; during that time negotiations were made to secure a policy at a more reasonable rate, and this was finally done with another company, the Provident Life Accident Company, . . ." Again he said: "Well, the $7500 was taken out, not only to take over the other policy, but also additional $2500.00 which he was to pay for that year."
We think this stock was owned by Dr. Sanderson at the time of his death. It will be noted that by paragraph 8 of the agreement it is provided "and as each twelve hundred and fifty ($1,250.00) dollar note is paid and satisfied, twelve and one-half (12 1/2) shares of stock shall *Page 891 be released from the terms of this agreement and shall become the property of the Party of the Second Part." It evidently had been released because seventy-five shares had been transferred on the books of the corporation to Dr. Sanderson and there stood in his name as owner when he died. It is undisputed, too, that he had fully paid for these seventy-five shares. It would be manifestly unfair and inequitable for Drs. Knox and Parsons to be now declared the owners of this stock after Dr. Sanderson has fully paid them for it. It will be kept in mind that the Hospital is not a party to this suit, nor is the title to the insurance policies, either the Equitable or the Provident, or liability for premiums, involved in this case. The only question is whether this stock, so paid for by Dr. Sanderson and standing to his name on the books of the corporation, belongs to his estate or to Drs. Knox and Parsons, who have received full pay therefor. If the Hospital is to be considered then it has insurance to retire this stock if it wishes so to do and to that extent is benefited by this transaction. It is clear to us it was the intention of the parties that the Provident policy was substituted for the Equitable policies, with an increase of $2,500 in the Provident policy, and Dr. Sanderson, having then in existence payable to his wife the Equitable policies, deemed it wise to retain them for his and his wife's benefit. We hold that Dr. Sanderson was the owner of the seventy-five shares of stock in dispute at the time of his death and, consequently, appellant is the owner at this time.
Affirmed in part, reversed in part, and remanded.
1 "Memorandum of Agreement between Dr. I.C. Knox and Dr. W.H. Parsons, Parties of the First Part, and Dr. G.P. Sanderson, Party of the Second Part,
"Witnesseth
"Whereas, the party of the Second Part is this day becoming associated with the Parties of the First Part and Dr. W.P. Robert in the general practice of medicine and surgery under the firm name of `Vicksburg Clinic,' evidenced by partnership agreement of even date herewith, which is made a part of this contract and is to be considered a part of same as if copied herein in full; and
"Whereas, the said Vicksburg Clinic comprises the staff of the Vicksburg Hospital, with Dr. I.C. Knox and Dr. W.H. Parsons owning a majority of the stock thereof.
"Now, therefore, for the consideration hereinafter set forth and the mutual benefits to be derived therefrom it is hereby agreed;
"1. That Dr. W.H. Parsons and Dr. I.C. Knox each on the execution of this instrument transfer and deliver unto the said Dr. G.P. Sanderson fifty (50) shares of stock in the Vicksburg Hospital.
"2. That the said Dr. G.P. Sanderson shall pay in cash on the execution of this instrument and the delivery of said fifty (50) shares of stock Twelve Hundred and Fifty ($1250.00) Dollars to Dr. W.H. Parsons and Twelve Hundred and Fifty ($1250.00) Dollars to Dr. I.C. Knox, which sum shall be payment in full for twelve and one-half (12 1/2) shares of stock in the said Vicksburg Hospital transferred to said Dr. G.P. Sanderson by both Dr. I.C. Knox and Dr. W.H. Parsons.
"3. That the said Dr. G.P. Sanderson shall make and deliver unto Dr. W.H. Parsons his three promissory non-negotiable notes for Twelve Hundred and Fifty ($1250.00) Dollars each, one of said notes maturing on the 1st day of March in each of the years 1940, 1941 and 1942, said notes to bear interest at the rate of six per cent per annum after maturity, and are to be secured by thirty-seven and one-half (37 1/2) shares of stock of the Vicksburg Hospital transferred by the said Dr. W.H. Parsons to the said Dr. G.P. Sanderson.
"4. That the said Dr. G.P. Sanderson shall make and deliver unto Dr. I.C. Knox his three promissory non-negotiable notes for Twelve Hundred and Fifty ($1250.00) Dollars each, one of said notes maturing on the 1st day of March in each of the years 1940, 1941 and 1942, said notes to bear interest at the rate of six per cent per annum after maturity, and are to be secured by thirty-seven and one-half (37 1/2) shares of stock of the Vicksburg Hospital transferred by the said Dr. I.C. Knox to the said Dr. G.P. Sanderson.
"5. That in the event of the death or retirement from practice of the said Dr. W.H. Parsons all notes then due and unpaid shall be cancelled, but in such eventuality, the said Dr. G.P. Sanderson shall reconvey to the said Dr. I.C. Knox and Dr. W.H. Parsons, or their successors and assigns, a sufficient number of shares of Vicksburg Hospital stock, on a $100.00 par value basis, to equal in amount the unpaid note or notes.
"6. That, provided such can be obtained for a reasonable premium, life insurance on the life of Dr. G.P. Sanderson in the sum of Twenty-five Hundred ($2500.00) Dollars shall be immediately taken out and paid for by the Vicksburg Clinic, and as the notes provided for herein are paid, additional life insurance in like amount shall be taken out and paid for by the Vicksburg Clinic. The said Dr. G.P. Sanderson shall designate the beneficiary in said policies.
"7. That on the death of the said Dr. G.P. Sanderson while said policies are in force, the shares of Vicksburg Hospital stock herein conveyed to the said Dr. G.P. Sanderson shall, by virtue of this agreement, revert to the said Dr. W.H. Parsons and Dr. I.C. Knox. The said Dr. G.P. Sanderson shall have the right at any time of assuming the payment of the premiums on said policies and in such eventuality the provisions of this paragraph shall be null and void.
"8. It is further understood and agreed, and this instrument shall be construed as a trust agreement to be in full force and effect until the notes hereinabove mentioned are fully paid, and to that end the notes executed by the said Dr. G.P. Sanderson shall be non-negotiable and the shares of stock transferred to him by the said Parties of the First Part shall be non-assignable until they have been fully paid for; that is to say, that the thirty-seven and one-half (37 1/2) shares of stock transferred to the Party of the Second Part by Dr. I.C. Knox and the thirty-seven and one-half (37 1/2) shares of stock transferred to the Party of the Second Part by Dr. W.H. Parsons shall remain as collateral security to the notes executed by the Party of the First Part until said notes have been paid, and as each Twelve Hundred and Fifty ($1250.00) Dollar note is paid and satisfied, twelve and one-half (12 1/2) shares of stock shall be released from the terms of this agreement and shall become the property of the Party of the Second Part.
"9. That Dr. G.P. Sanderson shall have the sole right to vote said stock during the existence of this agreement.
"Dated at Vicksburg, Mississippi, on this 1st day of March, 1939."
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