Brown v. McFarland's

The opinion of the court was delivered, by Woodward, J. As surviving partners, Brown & Caldwell would have been entitled, after McFarland’s death, to work up the stock on hand at the Phoenix Furnace, and to close the business of the partnership; but, for this service, would have had no right to charge the estate of their deceased partner with anything more than their necessary outlay of expenses. As compensation for their personal services they were not entitled to charge: Beatty v. Wray, 7 Harris 518. Nor does the will of McFarland and the agreement of his executor, made in pursuance thereof, alter the rule of law applicable to this case. The agreement does indeed provide that they are to account only for profits after paying “ all expenses, costs, charges, and services.” This last word is supposed to authorize and justify Mr. Brown’s charge of $1792.50 for his attention to the furnace. The auditors thought not. They did not deny that the word “ services” in the agreement might be construed to include Brown’s attentions, but they denied the right of the executor to make any such contract. They said the will authorized no agreement to pay for a partner’s services in closing up the concern, and the [134] executor had no power, virtute officii, to subject the estate to such a charge. We find ourselves inclined to agree with the auditors in this view. They have not only rendered very good reasons for the faith that was in them, but they have examined the arguments and authorities so satisfactorily, on which the plaintiff in error’s counsel rely, as to save us much trouble. We agree with them that there is nothing to take this case out of the ordinary rule of law, and that if the executor’s agreement was designed to do so, it was void for defect of authority. But we incline to the opinion that the word “ services” pointed to the employment of a manager. The furnace was conducted by Martin B. Wilson as manager, and for his services Mr. Brown was allowed a full credit. There was a clerk also, and other employees, and although the cost of all these might well enough have been considered as covered by the words “ expenses and charges,” yet it is not strange that the other word “services” should have been employed as referring to the same subject. Tautology, which is one of the commonest vices of American style, is thought to add strength to agreements and other legal documents. This very agreement affords another instance of the same sort. Having treated for all the “real and personal property” of the furnace, the parties put themselves to the trouble of interlining and noting in the attestation the words “assets and chattels,” as if these words might possibly embrace something omitted by the words “real and personal property.” In like manner we suppose when they thought of the outlays necessary for carrying on the furnace, they called them by the triple title of costs, expenses, and charges, but did not mean by either or all of the words to compensate the surviving partners for time and trouble in attending to partnership property, which the deceased partner had attended to in his lifetime without charge for his services. The next material point of controversy is the note of June 16th 1851,. for $1200, signed by G. B. McFarland, and made payable to the order of James E. Brown, on account of George B. McFarland & Co., in part of debt due to that firm by the Phoenix Furnace. . As I understand this matter it was thus: McFarland & Brown were partners in the “ Rural Village Store,” under the name of G. B. McFarland & Co. McFarland, Brown & Caldwell were ¡partners in “Phoenix Furnace,” under the name of G. B. McFarland. Phoenix Furnace owed Rural Village a debt, $1200 of which was represented by this note. Brown claimed to charge the whole amount of the note against the estate of McFarland. The auditors allowed him but half of it. Nothing can be more plain than that, as between Brown and McFarland, the note belonged to them jointly, and that in set [135] tling their accounts, Brown was entitled to no more than the auditors allowed him. The other items excepted to were not made the subject of remark in the argument, and we leave them as they stand in the auditors’ report. We can perceive no ground for the complaint that the auditors exceeded their powers. The agreement of January 24th 1860 was founded on the inconveniences which are always experienced in conducting actions of account render through all stages of their legal progress, and seems to have been intended to vest in the auditors plenary powers to deal with all questions that had arisen, and to report accounts in accordance with their several decisions. They seem not to have transcended the limits prescribed by the parties, and we think the court did right in confirming their report. The decree is aflirmed.