This is an action instituted in the chancery court to dissolve a partnership existing between the plaintiff Welker and the defendant Robinson, and to distribute the remaining assets. Plaintiff resides at Neelyville, Missouri, and is president of a banking institution, and is also an attorney at law, being a member of a certain firm of lawyers. The defendant resides in Clay County, Arkansas.
The partnership between these two parties was formed for 'the purpose of buying and selling live-stoelc and wheat, and, according to the terms of the agreement, plaintiff was to furnish the necessary capital upon which the business was to be operated, and defendant was to contribute his personal services in operating the business, and the profits and losses were to be equally shared between the parties.
The chancery court in the final decree stated an account between the parties in which it is shown that the copartnership owes the plaintiff the sum of $2,609.65, balance on contributions to the capital, and owes defendant the sum of $468.45 so contributed, and the total assets consisted of money deposited in the bank, to be distributed between the parties pro rata on the basis of the respeetive claims against the copartnership as above set forth. The defendant appealed from the decree, and the plaintiff has cross-appealed.
The decision of the chancellor involves chiefly mere questions of fact, and the inquiry here is whether or not the findings of the chancellor are against the preponderance of the testimony.
There is, however, one contention on the part of appellant which involves a question of law as to the rights of the parties tinder the contract. It is this: According to the findings of the chancellor, the amounts due by the copartnership to the respective copartners for contributions to the capital stock exceed than the remaining assets, and it is contended that the court erred in not crediting* the defendant with the value of his services contributed in the operation of the business of the firm as against the money contributed by the plaintiff. The answer to that contention is that, according to the contract, the defendant was only to share in the profits, and hence it appearing that the obligations of the copartnership to the members of the firm on contributions to the capital exceed the assets, there are no profits to distribute. According* to the terms of the contract as set forth in the pleadings and proof, defendant was only to share in the profits, and that does not give him the right to a share of the capital contributed by his copartner.
The correctness of several items in the account, as stated bv’the chancellor, is challenged by counsel for defendant, and it is also contended that other items are established by the proof which ought to have been charged to the plaintiff. The principal item involved in this contention is the sum of $800, for which the plaintiff sold a copartnership judgment against one Irby. It is contended that the judgment should not have been sold at less than face value, for the reason that the full amount might have been realized on execution, and also that the plaintiff failed to account for the proceeds of the sale. According to the testimony as abstracted, we can not say that the findings of the chancellor on the issues as to this item are against the preponderance of the testimony.
Again, it is contended that the court erred in refusing to deduct from the assets the claim of an attorney at law for services rendered in the suit against Irby, and in the effort to collect the judgment, but the court refused to allow this on the ground that the attorney was not party to the proceedings, and that all action at law was then pending against the partnership for recovery of the attorney’s fee. It does not appear that the attorney asked to be made a party to this proceeding, or has filed any claim in this suit. The court did not err, therefore, in refusing to adjudicate the question of liability for attorney’s fees in this particular action.
As to other items concerning which there is a controversy, we can not say that the testimony preponderates against the findings of the chancellor.
It follows that so far as concerns the original appeal, the decree must be affirmed.
Appellee cross-appeals on two items; one, an item of $650 charged against him in the account for profits on the purchase and sale of a certain lot of wheat. It is stated in the brief that this is error for the reason that the profit was earned by appellee as a member of another copartnership in which he and appellant were both members, and that this item had nothing to do with the partnership accounts between him and appellant. The difficulty about this contention is that it is not supported by sufficient abstract of the record showing an absence of testimony on which the finding of the chancellor was based. It is a mere assertion in the argument of the case, and we find nothing in the abstract that would justify us in overturning the finding of the chancellor on this item. It devolves on appellee, as cross-appellant, to show that the decree was erroneous in this respect, and he has failed to do that.
There is another item involved in the cross-appeal of $275 charged to appellee for sums collected in certain litigation against a railroad company for damages sustained by the partnership. The testimony as to that* item comes entirely from appellee, and he shows that he received $275, bnt that the collections were made by a firm of lawyers, of which he was a member, and that the customery fee in cases of that sort in that locality was fifty per cent, of the amount recovered, and that the firm made their charge in accordance with that custom and deducted one-half of the amount recovered. The testimony of appellee is not contradicted on this point, and we think it was improper in the face of that testimony to charge appellee with the full amount of the collection.
The decree will, therefore, be modified so as to allow appellees the additional sum of $137.50, making a total of $2,747.15 to be allowed to' appellee as a basis for distributing the remaining assets. In all other respects the decree will be affirmed.
The cause is remanded with directions to the chancellor to distribute the funds in accordance with this opinion.