Silver v. Shoob

Broyles, C. J. (After stating the foregoing facts.) Under our view of the ease it is unnecessary to discuss the ruling of the court on the special demurrer, since the general demurrer was properly sustained and the case dismissed. That this is true is, we think, clearly shown by the dissolution agreement or bill of sale, which writing, it will be recalled, was a sealed instrument, conveying every right of the selling partner in and to all classes of assets of the partnership, including “ stock, fixtures, outstanding accounts, leases and good will of the business, and everything else belonging to and connected with the said partnership business.” It also warranted the title to the selling partner’s half interest in the partnership, and released the purchasing partner from any and all couutemclaims. Can it be justly said that the parties to such an' instrument, conveying all the partnership assets, did not intend .to include in the sale the $6,084 overdraft, which indebtedness was a chose in action and a part of the partnership assets? We do not think so. The law would not permit of any other construction. In other words the legal principle controlling the final dissolution of a partnership, in exactly the manner in which the partnership in the instant case was dissolved, is clear and explicit, and leaves no doubt that when a final settlement of the partnership affairs is had, the party selling cannot, after dissolution, be legally charged by the party buying with any claims of an individual indebtedness of one of the partners due the old partnership, such indebtedness growing out of partnership transactions and not out of the partnership dissolution. This rule is stated in 30 Cyc. 457, as follows: “ Ordinarily, the sale to a copartner- of all the rights, title, and interest of the selling partner in a firm carries with it to the purchaser all claims which the seller has against the firm, whether such claims be for capital and advances, or accumulated profits, and it also relieves the seller from all liabilities to the firm for overdrafts or similar indebtednessThis rule may of course be [34] varied by the particular terms of the contract of sale. There is, however, nothing in the contract of sale under consideration which would take this case out of the general rule. See, in this connection, Beckley v. Munson, 22 Conn. 299; Kimball v. Walker, 30 Ill. 482, Taylor v. Coffing, 23 Ill. 273; Hattenhauer v. Adamick, 70 Ill. App. 602; Headley v. Shelton, 51 Ind. 388; Smith v. Evans, 37 Ind. 526; Pierce v. Ten Eyck, 9 Mont. 349 (23 Pac. 423) ; Fielder v. Beekman, (N. J. Ch.) 54 Atl. 156; Albright v. Voorhies, 36 Hun. 437; Finley v. Fay, 17 Hun. 67; Van Scoter v. Lefferts, 11 Barb. 140; New York Fourth Nat. Bank v. New Orleans &c. R. Co., 11 Wall. 624 (20 L. ed. 82). In reaching this conclusion we have not been unmindful of the allegation in the petition that it was “ not intended, understood, or agreed by either of said parties that the said dissolution should wipe out or in any way affect the indebtedness of said defendant to said plaintiff as aforesaid” This allegation, construed, as it must be, most-strongly against the pleader, is rather a conclusion of the pleader than an affirmative statement of facts. If the petition had stated it was expressly agreed between the parties that the dissolution agreement should not wipe out or in any way affect the indebtedness due to the overdraft, a different question would be presented. It follows from what has been said that the court did not err in sustaining the general demurrer and dismissing the suit. Judgment affirmed. Luke and Bloodworth, JJ., concur.