Movern v. Scharabon

Dibell, J.

(dissenting.)

I dissent:

When Scharabon and Movern made their agreement on August 1, 1919, they had in view the former customers of Scharabon, valuable to the new copartnership because of his good standing with his countrymen. When Scharabon went to the old country, as he anticipated doing, Movern was to have the good will of the business conducted in Scharabon’s name. They thought that Scharabon ought to have some reward for the business which he had built up through so many years of honest dealing and to which Movern was to succeed. They sought to give it by reserving to him a greater share of the profits of the copartnership. They tried to work it out by giving him the profits coming from a part of his old customers; and they did it by saying that he should have the profits coming from his old customers but defined the term “old customers” so as not to include all. Movern wrote the agreement and the language used requires construction. My judgment is that it should be construed as if it read that among or with Scharabon’s old customers should be included or “classed” those of the years of 1917 and 1918. Either the parties, having in mind Scharabon’s present customers, intended to include with Scharabon’s 1919 customers those of 1917 and 1918, they together constituting his “old customers,” fixing the beginning of 1917 as the date back of which they would not go; or they intended to include all of Scharabon’s customers from the beginning down to the end of 1918, leaving the 1919 customers for the copartnership. There is a reason for either construction. There is no reason apparent why the parties should select for Scharabon his customers of the years of 1917 and 1918, which were lean years because the war interrupted commercial intercourse with Austria, and say that those before the two year' period and after it were not old customers but new ones of the copartnership. Perhaps neither suggested meaning can be given with the evidence as it is. Perhaps *60the language is so ambiguous that the definition of “old customers,” as written by Movern, cannot have effect. On a new trial evidence might be adduced aiding a construction. I do not agree with the construction adopted by the majority.

Holt, J. (dissenting.)

I agree with Justice Dibell.