I concur in the disposition of the points raised on appeal, except as respects (he land, which, in an action in the supreme court, conclusive as between these parties, has been adjudged to be partnership assets, and ordered to be conveyed to a receiver. The land has been so conveyed, and is now held by the receiver so appointed, for the benefit of the firm. In the account taken, the plaintiff, Duden, has been charged $32,000, as the value of (he land and factoi-y property at the close of the partnership, several years before that adjudication. The necessary effect of that charge, if allowed to stand, will be to transfer the land equitably to Duden, at that valuation; and to require the receiver to convey it to Duden without any sale of it, or any determination of its value by a sale, as is usually required. The defendant, Maloy, has duly excepted thereto, claiming that the land is worth far more than the valuation put upon it; and he insists upon a sale. Unless the articles otherwise provide, or unless the partnership was a partnership in profits only, as the plaintiff on the argument of this ap*190peal contended, Maloy is entitled to a sale, under tlie well-settled rule that forbids any preference to be shown to one partner over another in the liquidation, and hence disallows either partner to take the assets at a valuation, in case of disagreement, and requires that the firm property be sold. 3 Kent, Comm. 64; Lindl. Partn. 857; Col. Partn. §§ 308-313.
This was not, however, a partnership in profits only. That means that the property used, or dealt in by the firm, is not firm property, but remains always the individual property of one or more of the partners. That is a rare and exceptional kind of partnership. That such is not the present case seems to me evident (1) from the face of the articles themselves, which declare a general commercial partnership for “dealing in lace goods,” and (2) from the fact that millions of dollars’ worth of laces have been bought and sold in the firm name, in the ordinary course of commercial partnership dealings ; all of which appear in the firm name, in the partnership books, which the defendant was required to keep, and did keep. It is impossible, as it seems to me, to hold that all these goods were intended to be bought and sold as Duden’s individual property. Every line of the firm accounts contradicts this theory. The adjudication of the supreme court also has adjudged as between these parties that the property was firm property, the land being held to be firm assets because bought with funds of the firm.
Nor do the articles, as far as I can perceive, contain anything to exclude or vary the ordinary legal rules applicable to the winding up of a partnership on dissolution in case of disagreement. They contain no provision giving to either partner any preference, or any right to take the firm assets to the exclusion of the other partner, either at a valuation, or otherwise. There is nothing whatsoever in the articles upon that subject.
By the second article, Maloy, who was to keep the books of account, agreed “that an account of stock should be taken, and the books balanced on the 30th of June in each and every year.” By the third article, after agreeing that the net profits should be divided, 75 per cent, to Duden, and 25 per cent, to Maloy, it was declared: “Such profits to be arrived at by deducting expenses, bad debts, interest on capital, and 10 per cent, each year, on all goods remaining unsold, etc., at the time of taking stock,” i. e. June 30th.
These provisions for taking an account of stock, and balancing the books, on each 30th of June, had, in my judgment, no reference to the final liquidation of the firm business. They were expressly designed for each year during the copartnership, and the}' were for the purpose of ascertaining approximately the profits of each year, and how much might be drawn out by each partner. As the account was to be taken on each June 30th, and was to embrace the business up to that same day, much would necessarily remain uncertain in the outstanding credits, and subject, therefore, to correction, in case of subsequent losses in collections on that year’s business. Every such annual account was, therefore, provisional only; and if any such account was taken on the last June 30th, at the end of the partnership, it could not possibly bfe final. It is plain, therefore, *191that these annual accounts had no reference, and were not intended to have any reference, to the liquidation of the firm business, or to the accounts to he taken on liquidation. Similarly the 10 per cent, deduction in the price of stock on hand, was merely for the purpose of taking these annual accounts, and to ascertain provisionally the share of profits distributable to each. When this deduction was made in each annual account, that did not give the stock to either partner to the exclusion of the other. The stock remained firm property as before. It was the same at the close of the partnership. The stock on hand remained still firm property, to he disposed of as such in liquidation; and there is not the least intimation in the articles that either partner should have any preference in the right to liquidate the business for his own profit, to the exclusion of the other partner, or to take the stock at a valuation, contrary to the settled law; nor is there anything in them requiring Duden rather than Maloy to take the stock at a loss, if it should prove to be worth less than the estimate. Duden was hound by his personal guaranty to make good to Maloy $5,000 as bis share of the profits annually; he was hound to nothing more, except what the ordinary rules of law impose.
The provisions of the fifth and seventh articles seem to me to be without the least prejudice to the equal rights of both partners in liquidation, and to have no bearing thereon. The seventh article, provided that Maloy at the termination of the partnership, “should be paid * * all profits that may be standing to his credit, including interest that may be due him thereon.” This has evident reference to the fifth article, which required Maloy to leave “in the business” “all excess of his share of the profits” over $0,000, “drawing interest at'seven per cent.” The seventh article did not require Duden in the first instance to pay those profits; they would be “paid.” quite consistently with the articles, out of the assets, if the firm was solvent, in due course of liquidation, by whoever had charge of ihc final liquidation, i. e. by both partners together, or by either alone, as might be agreed on, or in case of disagreement, by the receiver necessarily to be appointed. If the firm was insolvent, these back profits would be absorbed by creditors, and could not be paid from the assets at all; although Duden would be ultimately bound by his personal guaranty to make them good to Maloy, through his guaranty of profits in the subsequent: business. The postponement of Malay's right to be paid his apparent profits, to 3, 6, 9 and 12 months, was appropriate and necessary for the correction of errors, according to the ultimate results of the liquidation, as well as to know whether they could be paid out of the assets, or must be paid by Duden personally. There was no similar express provision for paying Duden’s profits, inasmuch as Duden was not required to leave any profits in the business.
The provisions of the fifth and sevenih articles, therefore, seem to me to contain nothing* any more than the second and third, to render inapplicable the ordinary rules of law as to the equal rights of partners in liquidation, and Duden, therefore, could not take the land at a valuation against Maloy’s consent.
*192The assets, other than the land, have been disposed of by Duden, after an injunction obtained by him; and no exception is taken by Maloy as to the disposition of the goods; but the land, in a special suit, has been procured by Maloy to be conveyed to a receiver, to be disposed of on the firm account. The only possible purpose of the judgment of the supreme court in ordering the land to be conveyed to a receiver was, that it should be sold. If Duden was only to be charged with its value at the close of the partnership, the conveyance to a receiver was useless, and improper. To refuse a sale, and require in effect that the land be now conveyed by the receiver back again to Duden without a sale, seems to me to refuse to abide by that adjudication, and in effect to annul it pro tanto. The land, moreover, has never been treated as stock; never subjected to the 1.0 per cent, yearly deduction; and is not so treated in the commissioner’s account, and it would evidently be improper to treat it in that way. It is still a firm asset.
Independently of the adjudication of the state supreme court, the refusal of a sale of the land seems to me to be erroneous, because opposed to the well-established rule that disallows to one partner the advantage of taking the assets at a valuation, when the other partner demands a sale; because it refuses to admit the proper legal criterion of value; and because the articles in this case cannot justly be construed to vary that most important rule, or to have intended any variation of it, inasmuch as they contain no express provision on the subject; and because full effect can be given to every word in the articles without any such result; and when that is the case, a different construction of them is not admissible to set aside so important a rule of partnership law.