By the provisions of the partnership agreement each partner became entitled to share in the receipts of the firm, less the expenses. No profits from any other source, derived by either partner, were to be shared or accounted for in a settlement between them of the partnership business. That business was the practice of the law. It was so expressed in the agreement, and it is alleged in the bill that no other articles or instrument was ever prepared and executed between the parties, but that the copartnership was carried on in pursuance of and under the said agreement up to the dissolution thereof December 15, 1885. By the terms of the stipulation under which the cause was tried, nothing was left for the consideration of the court other than the commissions received by Bradshaw as executor of two estates and administrator of a third. If these commissions were receipts of the firm, appellant was entitled to a share thereof and to have an account from appellee, otherwise the bill was properly dismissed. Appellant contends these commissions were receipts of the firm, to a share of which he was legally entitled as a partner, and this is denied by appellee.
There is nothing in the articles of copartnership, fairly construed, supporting appellant’s contention, and the acts and declarations of the parties, together with other facts and circumstances in evidence, clearly indicate the commissions were not receipts of said partnership business earned by the firm, and were not so considered and treated by the members thereof.
The Bennett estate was settled September 17, 1881, more than nine years prior to filing the bill in this case. The Eminent estate was settled June 3, 1882, more than eight years prior to filing said bill, and the ISTeudecker estate was finally settled .December 21, 1885, and although Metcalfe knew at the times when Bradshaw took out his several letters testamentary and of administration that he had done so, and knew that he was acting in the capacities mentioned, that he had received these commissions and they amounted to several thousand dollars, yet during all these years no entry was made in the firm books of such receipts, and no demand' was made by Metcalfe for any share thereof, except that Bradshaw testified Metcalfe came to him September 1, 1889, and asked him if he did not think he ought to divide the commissions in the Eeudecker estate, and he, Bradshaw, said no, and that he didn’t think he owed him anything; that Metcalfe then said, “ I don’t think youaredegally liable, but morally you ought to,” and that he, Bradshaw, replied, “ I shall not do it;” that Metcalfe asked him a few days afterward in the court room if he would do it, and he said no; that Metcalfe then said, “ I will sue you,” and he replied, “ Go ahead.” This testimony of Bradshaw was not contradicted and he denies that the firm had any claims in or to these commissions. We refyain in this connection from discussing the method adopted by appellant to procure the selection of appellee as executor of Eeudecker, together with the motive that he says prompted him to accomplish such selection, and the contradiction of his testimony by Eaton, and the effect of his acting as attorney for the estates to defeat his claim to any part of the said commissions, and hold that, independent of these matters, the facts established by the evidence contradict appellant’s theory and defeat his claim. Bradshaw took no unfair advantage in accepting the positions of executor and administrator. It was not done secretly but openly, with the knowledge and consent of his partner. Acting in these capacities did not conflict with the interests of the firm or interfere with its business, as we understand the evidence. The fourth, fifth and sixth clauses of the partnership agreement, quoted in the statement of the case, do not prohibit either partner from doing other business, except neither is to become a candidate for office unless by mutual consent, and each is to give his time, talents and strength to the prosecution of the interest of the firm, and the violation of these provisions by either party will justify the dissolution at the instance of the other party. In the absence of any inhibition forbidding it, Bradshaw had the right to act as executor and administrator' and receive and appropriate to his own use said commissions. In Parsons on Partnership, Sec. 6, Par. 2, Chap. 7, it is said, “It is probably not true in fact that the majority of partners confine themselves absolutely and exclusively to partnership business, or that it is expected or necessary that they should.”
This is coupled with the condition that one partner can not, without the consent of the others, embark in a business that manifestly conflicts with the interests of the firm, and he can not clandestinely use the partnership property or funds for his own private advantage without being required to account to his copartners for the property or funds thus used, and for the profits made. 5 Wait’s Actions and Defenses, 125.
The same doctrine above stated is announced in cases cited by appellee. Wheeler v. Sage, 1 Wall. (U. S.) 628, and other authorities.
Applying the law as we believe it to be, to the evidence disclosed by this record, we reach the same conclusion arrived at by the trial court, that the commissions were not the receipts of the firm, or earnings in which complainant was entitled to any share, or for which defendant could be required to account, and the bill was properly dismissed.
The decree of the Circuit Court is therefore affirmed.
Decree affirmed.