The opinion of the Court was delivered by
WillARD, A. J.Plaintiff filed his bill in equity, as executor of J. L. Francis, to obtain the aid of the Court in performing and carrying into execution the trusts of the will of his testator. Laurens F. Campbell and E. W. Lee were made parties defendant, the former as devisee and residuary legatee under the will, and the latter as tenant in possession of a house and lot on King street, Charleston, which, by the sixth clause of the will, was specifically devised to L. F. Campbell for life, with remainders over as follows: as to a moiety thereof, to the children of L. F. Campbell living at his death; and as to the other moiety, to E. Houston and others. .
The bill prayed that the trusts of the will of the said J. L. Francis may be performed and carried into execution by and under the direction of the Court, and that the rights and interests of all parties under the same, in the real and personal estate of the said J. L. Francis, may be ascertained and declared by decree, and the plaintiff instructed upon all complicated and grave questions arising under the will.
Lee answered, submitting to the Court certain rights claimed under articles of agreement, exhibited and forming part of the ease, made between himself and the testator, J. L. Francis, on the 29th day of January, A. D. 1866.
L. F. Campbell answered the bill, submitting to- the Court his right, under the agreement just referred to, for the construction of the Court.
Testimony was taken.bearing on the relative rights of Campbell *12and Loe, and a decree made, covering tbe questions at issue between the plaintiff and the two defendants last named.
The facts of the case, as far as they are necessary to explain the decree, are, briefly, as follows: The testator, during his life time, entered into an agreement with Lee to become partners in the business of barbering and segar making, to commencé on the 29th of January, 1866, and continue ten years. Provision was made, as to the capital and stock of the respective parties to be employed in the business, for an equal division of profits, and as to other matters appertaining to a partnership business. The clauses of this agreement bearing upon the present case are as follows:
“The said party of the first part agrees to allow7 the said building, together with the lot of land on which the same is situated, and all the appurtenances'thereto belonging, to be used for the purposes of the said copartnership during the whole time that the same is to continue, at a rental of $700 per annum, to be charged on the books of the said copartnership against the firm, and to the credit of the said party of the first part” (J. L. Francis.) Also, as follows: “In the event that either of the said partners should, before the expiration of the period specified for the'eontinuance of the said copartnership, depart this life, the said copartnership shall be regarded as ended and determined, and a settlement made by the survivor with the executor or administrator of the one deceased: Provided, however, nevertheless, That if the said party of the first part should depart this life before the exjoiration of the said specified period for the continuance of the copartnership, the said party of the second part shall be at liberty, and have the privilege, to retain the building, lot and appurtenances, hereinbefore set forth, and in which it is recited that the business of the copart-nership is to be continued, until the period prescribed for the termination of the copartnership, upon the same terms and annual rent, which, by these articles, it is stipulated should be awarded to the party of the first part for the use thereof.”
The Chancellor held “that the survivor, so long as he continues the business in pursuance of the privilege accorded to him by the articles of copartnership, is liable to account to the executor of the deceased copartner for one-half of the net profits of the business; and that it is his duty to keep clear accounts of the same.”
The partnership terminated with the death of either party. Can *13the right to net profits survive that event ? The consideration of the agreement, in the present case, was the mutual skill and services of the copartners, for the profits of the business did not depend on capital, but upon skilled labor, and, accordingly, ceased with the death of either of the copartners. The object of the copartnership was profits, and the equity of the agreement depended upon an equal division of the labors and the advantages of the enterprise. The house and lot cannot be regarded as capital, or as entering, otherwise than collaterally, into the common stock.
It was compensated for by a fixed rent, paid out of the profits, but enuring to the sole advantage of the testator. The right to net profits is the principal fruit and incident of the copartnership, and, therefore, ceased with it. Upon any other construction, the language of the contract is nugatory. It would be virtually declaring as the intent of the parties, that, in the event of the death of one of the parties, his interest should continue for the benefit of his representatives, free from the necessity of either contribution to the common interest or liability for losses.
The language of the parties, the policy of the law that declares the death of a copartner a dissolution of his copartnership engagements, and the equity of the agreement In question, conspire to preclude such a construction.
The conclusion of the Chancellor was induced by a supposed necessity of finding some idea in the contract corresponding to the word “ terms,” employed in conjunction with annual rent.” It is assumed that the word “ terms” is ambiguous, and that construction must be resorted to to fix its meaning.
However imposing that necessity may be, it certainly is not justifiable to unsettle the clearly expressed intent of the parties as to subjects that are free from obscurity.
To allow this would be to propagate an ambiguity, confined to one of those expressions that are very much a matter of form in legal instruments, throughout the body of the whole agreement. Such is not regarded as the proper office of construction, especially when it depends on verbal criticism.
It is not necessary to fix the precise object of the introduction of the word “ terms,” as it does not fall within the proper scope of the present bill to ascertain what interests, as between Campbell and Lee, depend upon it.
We are of opinion that the decree of the Chancellor, so far forth *14as it directs an account to be taken of the profits of the business after the decease of the testator, is erroneous.
JudgmeNT.
It is adjudged and decreed, that the decree of the Chancellor, so far forth as it adjudges the defendant, Edward W. Lee, liable to account to the complainant, as executor of John L. Francis, deceased, for one-half of the net profits of the business carried on by him, from and after the decease of the said Francis, and bound to keep clear accounts of the same, and as directs the said Edward W. Lee to account in respect thereof, be, in all things, reversed, and that the case be remanded to the Chancellor, to proceed therein as to all matters not adjudged hereby.
Jrloge, A. J., concurred.