Winnard v. Clinton

Mr. Justice Scott delivered the opinion of the court: It is first contended that the decree rendered upon the cross-bill under date of September 23, 1903, was a final adjudication as to the dissolution of the partnership and as to the accounting between the partners. This defense was not made in the circuit court. The parties there evidently regarded. the order of February 9, 1904, which satisfied the decree upon the cross-bill in so far as that decree purported to fix the amount due from one of the partners to the other upon the accounting, as, in effect, an order vacating that part of that decree. Both thereafter proceeded to take testimony and have the account stated on that theory. Appellant will not now be permitted to take an inconsistent position. Gehrke v. Gehrke, 190 Ill. 166, and cases cited. During the continuance of the partnership the personal property used depreciated to the amount of $2652.25 and horses to the value of $215 were lost by death, making an aggregate loss of $2867.25. Appellant contends that this should be regarded as a partnership loss; that as all the personal property belonged to him appellee should be held liable for one-half of this amount, and that the result of holding that this is not a partnership loss will be to permit appellee to share in the profits of the enterprise and compel appellant to suffer all the losses, and authorities are cited to show that this may not lawfully be done. This case, so far as this question is concerned, turns not upon the general rule relied upon by appellant, but upon the provisions of the contract itself, which recites that “said real estate and personal property to be used by said firm for one-half of the profits of said business going to said Clinton, as hereinafter specified, * * * and said Clinton is to receive all of one-half of the profits in said business as compensation for the use of said real estate and personal property aforesaid.” We think, in view of this language quoted from the contract, and in view of the fact that according to the terms of that instrument appellee, by purchase from appellant, was to become the owner of the one-half of the personal property in question, it is clear that the parties did not intend to deduct from the gross profits the depreciation in the value of the personal property used in the business in ascertaining the amount of the net profits. Appellant by his contract has precluded the court from applying the rule upon which he relies. No attempt is made to recover any damages from appellee consequent upon the fact that the purchase which she bound herself by the contract to make was not consummated, nor has appellant sought to charge her with any portion of the purchase money. In fact, it is not made to appear by the evidence that she was in default so far as the agreement to purchase is concerned. Appellant employed an audit company to examine the books of the firm and make a statement of the account. He 1 paid that company for its services the sum of $250, and contends that this should be regarded as an expenditure on account of the firm and appellee required to pay the one-half thereof. Appellee was not consulted about the employment of this company. As soon as she learned that it had been engaged she objected. It is apparent that Clinton was having the examination made for his own purposes and not for the benefit of the firm. Under these circumstances the court properly refused to charge appellee with any part of the item. The judgment of the Appellate Court will be affirmed.' Judgment affirmed.