Krigbaum v. Vindquest

Maxwell, Ch. J. In December, 1876, tbe plaintiff and defendant entered into the following agreement: “Articles of agreement entered into tbe first day of December, in the year 1876, between N. N. Yindquest and S. K. Krigbaum, witnesseth: That for tbe purpose of putting up and selling ice in tbe city of Omaha, during tbe year 1877, tbe said N. N. Yindquest covenants and' agrees with tbe said S. K. Krigbaum that be will furnish all the ice-houses, all tools, and sawdust, all tbe teams and food for tbe same, all tbe money necessary to put up tbe ice, and everything else needed. Also that be will furnish said Krigbaum a bouse, free of rent, near tbe ice-house on Sixteenth street. And tbe said Krigbaum, for and in consideration of tbe covenants of the said Yindquest, covenants and agrees that be will put up tbe ice by safely and securely bousing tbe same, and will, from time to time, sell and dispose of tbe same to the best advantage, and will use bis best endeavor to make the said business profitable. It is covenanted and agreed between tbe parties that, all expenses are to be taken out of tbe amount realized from tbe sale of said ice, and that the said Yindquest is to receive back tbe advances made by him but of tbe first proceeds above tbe necessary expenses of tbe business, and of Krigbaum’s living, the latter to be charged to him in bis account, and that tbe profits are to be equally divided, Krigbaum to have one-half and Yindquest to have one-half. And it is further agreed between tbe parties that this agreement shall be binding upon them for one year from tbe date aforesaid. Pro [437] vided that if said Erigbaum shall become dissipated and neglect the business, then the said Vindquest to have the right to terminate the agreement. “ In witness whereof we have hereunto set our hands and seals. “ N. N. Vindquest. “ S. E. Erigbaum.” Erigbaum under this contract put up a large amount of ice, and seems to have performed his duty as a partner until about the twenty-second of July, 1877, when Vindquest, under the pretext that Erigbaum had become dissipated, took possession of all the ice, teams, and books, and excluded Erigbaum from taking any part in the business. Vindquest sold the ice remaining on hand, keeping no account of the receipts and disbursements, and appropriated the proceeds to his own use. The plaintiff' filed a petition in the district court of Douglas county for an account, and praying judgment for the sum of $3,000 and interest. Issues were made up and the cause was tried at the April, 1879, term of the court, and judgment rendered in favor of the plaintiff for the sum of $1,298.17 and costs. The defendant appeals to this court. There is some testimony in the record tending to show that Erigbaum was addicted to the use of intoxicating liquors, but we fail to find any evidence showing that he thereby neglected his business. The right of Vindquest to terminate the contract depended -on two conditions, viz.: that Erigbaum “shall become dissipated and neglect.the business.” The defendant therefore had no right to terminate the contract in the manner he did. But even if Erigbaum had become dissipated and neglected the business it would not give Vindquest the right to appropriate all the partnership property to his own use. Such conduct on the part of Erigbaum [438] would have justified a termination of the partnership and a sale of the partnership property, but the proceeds after the payment of the partnership debts must be divided between the partners in proportion to their respective interests, and could not be appropriated by either to the exclusion of the other. Various objections are made to the judgment of the court below. Mr. Vindquest should have kept an account of the receipts and disbursements by him, and having failed to do so, the exact amount due from him to plaintiff cannot be determined. But he should not be permitted to profit by his own wrong. The testimony, however, fully sustains the judgment, and we fail to perceive any error in the record of which defendant can complain. The decree must therefore be affirmed. Decree aeeirmed.