Opinion
December 5, 1907.
Alfred A. Wheat [ Gilbert H. Montague and William S. Woodhull with him on the brief], for the appellants Carleton Bainbridge and Sherman Bainbridge.
William Byrd [ Robert L. Harrison with him on the brief], for the appellants John C. McKennie and others.
Albert G. McDonald, for the respondents.
The question of fact tried was what was the partnership agreement between the mother and her two sons when she died in 1903. The partnership books showed that since 1895 her share of the capital remained constant at $30,000, and that she received each year only $2,500 as her share of the profits, all increase of capital and all the rest of the profits being meanwhile credited to her sons. This course of dealing among the partners would be controlling evidence of the status and interest of each in the absence of any other evidence. But she did not participate in the management of the business, but left it to her sons. It is therefore argued that the contents of the books did not bind her, as would otherwise have been the case. Against this it was shown that annual and monthly statements were regularly made out from the books and given to her showing the capital interest and profits of each as stated above. These statements were found among her papers after her death. Two of her daughters also testified that they had seen her read these statements, and that she had told them that her capital interest in the partnership was $30,000 and her income therefrom $2,500 a year, and were to remain so, by agreement with her said sons. All of this suffices to show that the books correctly showed the relation and interests of the partners, and that therefore the written partnership agreement made on January 1st, 1884, to continue for ten years and which continued for two years longer, as the partnership books showed, had been superseded by a new arrangement at the beginning of 1896. The books showed that she had about $30,000 to her credit at that time, that theretofore the profits had been divided equally among the partners, and that her capital, like that of her sons, had been increased almost every year by undrawn profits of the business placed to her credit. This course of business ceased at the end of 1895, and was succeeded by the course stated above. During the time the written partnership agreement was in operation, annual and monthly statements were given to her like those given to her after 1895. This series of statements for nine teen years, viz., from January 1st, 1884, informed her fully of the changing interest of each partner in the capital and profits as shown by the books from time to time.
It was not unconscionable or unreasonable that at the age of seventy-three the mother should allow all future increases in the business to go to her two sons upon whose efforts it depended, and that she should be content in the retirement of her old age with over eight per cent return on the capital which she had accumulated by the industry and fidelity of her sons and allowed to remain in the business. It was impossible because of her death for any direct oral evidence to be given by the sons of the making of the new arrangement, but the other evidence sufficed to enable the learned trial Judge to find that it was made.
There is a class of cases, i.e., of attempts to get the property of persons after their death by means of alleged oral agreements with them, which are looked upon with disfavor and suspicion by the courts, and against which there is a presumption at the outset, instead of their being approached, like other cases, with a neutral mind; but this case after all is hardly of it. And if it be deemed to be, such presumption was removed, and the case fairly proved. That the new arrangement was not put in writing is a fact to consider, but it is not controlling. The partnership agreement for the first three years, viz., from 1880 to 1884, was not in writing.
The judgment should be affirmed.
JENKS and RICH, JJ., concurred; HOOKER, J., dissented; HIRSCHBERG, P.J., not voting.
Judgment affirmed, with costs.