The instrument under which the business was conducted, although called a lease, is, in so far as this accounting is concerned, a partnership agreement (Eastman v. Clark, 53 N.H. 276); for by its terms the plaintiff is to contribute to the business the use of his hotel with its furnishings, make certain specified outside repairs, and pay the taxes and insurance on the property. The defendant is to manage the business, pay for the water, ice, and electric lights, and "put into such furnishings and minor *Page 192 inside repairs as are absolutely necessary a sum not exceeding $500," and the net profits of the business are to be divided between them.
The parties were induced to engage in the business by the expectation of making it a success. They must have known this could be done only by keeping the property in a condition to attract business. If they knew what it would cost to put the property into that, condition, they could not know what it would cost to keep it there; and since keeping it there was essential their success, it is improbable that they intended to limit the money that could be used for such purposes to $500, or any other sum less than the amount necessary for that purpose. The only evidence from which it is claimed such an intent can be found is that part of the agreement in which the defendant agrees "to put into such furnishings and minor inside repairs as are absolutely necessary a sum not exceeding $500." It is obvious that provision has no such tendency. The language of this clause, the part of the agreement in which it is found, and the fact that the only effect the omission of "a sum not exceeding $500" has on the construction of the agreement is to change the amount of money the defendant agreed to put into the business from a definite, to an indefinite amount, all tend to prove that the purpose of this clause was to limit the amount of money he could be compelled to advance for repairs — not, as claimed by the plaintiff, to limit the amount of money he could use for that purpose. As there is no other evidence which has any tendency to prove that the parties intended to limit the amount of money the defendant could use for repairs to any particular sum, it must be held that they intended him to make such repairs as were reasonably necessary for the success of the business. Since all the repairs the defendant made, including the painting, and all the things he furnished, including the bedding, lawn-mower, and golf prize, were reasonably necessary for and conducive to the success of the business, it could be properly found that the defendant should be credited with their cost.
It is obvious that the plaintiff was not injured by the ruling which gave the defendant credit for the loss on stock, money paid for shoeing horses, repairs on harnesses and carriages, and for carrying on the garden. By the agreement, the plaintiff was to receive one half of the net profit (not one half of the gross income) of the business which was to be done under it. If the agreement contemplated that the defendant should carry on the garden and stable, he was properly allowed these credits. If it did not contemplate that he should engage in such business, these credits should have been disallowed. But if they are disallowed, the gross receipts from the garden and stable should be taken from the *Page 193 other side of the account. The result would be that the sum for which the defendant must account would be less than it is under the ruling of the court, for the garden and stable were both carried on at a profit. Therefore the order must be,
Judgment for the defendant for his costs.
PARSONS, C.J., and BINGHAM, J., concurred:
WALKER, J., doubted.