[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 80
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 81 The writing on which this action is brought amounts to something more than a naked promise on the part of the person signing it. It indicates a contract having the consent of Wilson and Emery to the stipulations expressed in or to be fairly implied from it. Although signed by Wilson only, it was accepted by Emery, and its cause or consideration sufficiently appears. It is dated January 1, 1873, refers to the firm of John T. Wilson Company, as then existing, and the undertaking on the part of Wilson could become operative only by its continuance, for it is according to the sum of profits of the firm as ascertained during that year, that Emery is to be paid. He was under no obligation to remain in the firm, and it is not unreasonable to infer that Emery consented to continue a member of the co-partnership in consequence of Wilson's promise, and that the promise of Wilson was made to induce that consent. There was then a reciprocal agreement between the parties. This view is strengthened by the fact that from the time of this contract, Emery did remain in the firm, and Wilson received from the firm business a larger share of profits than he had received during the year 1872, and Emery received less. Some agreement must have led to this change, and the fact itself throws light upon the contract, indicates a connection between it and the result referred to, and a sufficient inducement for Wilson's promise. In the next place it is obvious that the undertaking disclosed *Page 83 by the writing is that of Wilson separately, and has no relation to the partnership or its affairs as such. It did not affect Simpson, the other partner, or purport to do so. His share of the profits remained at all times the same, and as he was not a party to the agreement in question, neither does it appear that he was in any manner privy to it, or that Wilson assumed to act for him. It must be construed according to its terms, and, so construed, imposed an individual liability upon Wilson and upon no other person. (Burnett v. Snyder, 76 N.Y., 344.) Nor was it improper to measure this liability of Wilson according to the profits appearing from the entries upon the books of the firm for the year 1873. The partnership articles under which in 1865 the firm of John T. Wilson Company was formed, provided that the transactions of the co-partnership should be entered in its books so as to exhibit from time to time the condition of its affairs and that on the first day of January and every three months thereafter in each year, a full and perfect account of its affairs "should be taken, had and settled" between "the co-partners to the intent that it may thereby appear what are the net profits;" and it was undoubtedly in reference to these provisions that the term "net ascertained profits," was selected as the measure of Wilson's obligation under the contract in question. Nor did the referee err in refusing to deduct from the profits so ascertained, the amount of the depreciation in value which the property of the firm had undergone. The arrangement between Wilson and Emery did not contemplate a final winding up or settlement of the affairs of the firm of John T. Wilson Company before payment to Emery should be made, but only that the profits of the business of the firm for the year should be ascertained or stated in the manner before referred to. The extent of Wilson's obligation was limited only by the profits so ascertained. It follows from these considerations that the accounting had in the winding-up suit between the partners or their representatives was no bar to the present action. It appears, *Page 84 however, that upon the hearing thereof the contract now before us, and Emery's claim under it, were offered by the plaintiff for the consideration of the referee, but on motion of the defendant it was excluded on the ground that "it gave Emery no specific interest or lien upon the property of the firm," and so was not within the issue in that action. It is evident, therefore, that the demand now in suit was not in fact considered in the former action, and except by consent of all parties it could not have been.
There is no reason, therefore, why the judgment of the court below should not be affirmed.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.