Gyger's Appeal-Musselman's Appeal.

as the books, papers and accounts of said firm set forth on July 2d, next; provided further, that in case of the decease of John Gyger. before the business is finally settled, the surviving partner or partners shall finally close and settle the same."

The partnership was dissolved July 2d, 1859, and Gyger immediately, and in accordance with the agreement, took possession of the banking-house and the assets of the firm, and also commenced banking on his own account, under the old firm name, and so continued until May 4th, 1864, when the First National Bank of Lancaster was established, and rented the banking-house, and during all that time he was engaged in settling the affairs of the old firm, using the banking-house for that purpose; the assets of the old firm were $264,550.11, of which $31,757.45 were bills protested, about $25,000 of which could not possibly be realized, and much of that collectible only by suit, and $15,285.77 were real estate; the amount of expenses, including salaries of clerks in conducting the business of the settlement, rent, etc., with which the old firm should be charged, was $2,102.29; the rent of the banking-house, including the amount chargeable to the old firm, was $800 per annum; all the assets were collected but $962.49.

On the 6th of August, 1860, Bair sold his interest to Joseph Clarkson.

The business was closed, not only without loss, but with some profit. Out of that profit, Gyger paid to Eshleman and Musselman, partners, and Clarkson, transferee of Bair, the remaining partner, each the sum of $1,000.

The case was referred to a master, who found that the defendant Gyger was liable to account for rent at the rate of $600 per annum, excluding the amount chargeable to the old firm; that he was not liable to account for the good-will; that he was chargeable with profits made during the continuing of the business after dissolution, and fixed the amount of profits at $200; that there were to be allowed, for counsel fees, clerks' salaries, etc., rent, etc., $2,102.29, as above stated; this included salary to Joseph Clarkson, plaintiff, who had been employed as clerk; that he was not entitled to compensation "for merely winding up the business of the old firm," but was entitled to compensation for conducting the business of the firm after dissolution, and fixed the sum at $100.

He then stated an account, in which, among other things, he made charges and allowances in accordance with the foregoing

Gyger's Appeal-Musselman's Appeal.

decisions, and charged the defendant, besides, with "interest on balance ($3,598.79) due to old firm, from May 1, 1865, to December 10, 1868, $801.40; interest on rent of banking-room ($2,900), as it fell due, up to December 10, 1868, $777.19." He also allowed "interest on balance due to John Gyger, $219.82." The account showed a balance of $8,177.38, due by the defendant to firm; and the master awarded $2,044.34 as the share of each partner.

The defendant excepted to the report, in not allowing enough for expenses; in not allowing the defendant proper compensation; in charging him with rent and interest.

The plaintiffs excepted to the report, that the master had not charged against the defendant sufficient rent, nor the value of the good-will; that too much for expenses had been allowed to him; and that he had been allowed compensation for conducting the business after dissolution.

The court overruled the exceptions of both parties, and confirmed the report, from which both parties appeal.

O. J. Dickey and J. E. Heister, for Gyger, on the question of compensation, referred to Collyer on Partnership, §328; Bradley v. Chamberlin, 16 Vt. 613; Wilby v. Phinney, 15 Mass. 120. On the subject of interest, Story on Partn. § 182; Beacham v. Eckford, 2 Sandf. Ch. 116; Dexter v. Arnold, 3 Mason, 284. On "good-will," Story on Partn. 99; Williams v. Wilson, 4 Sandf. Ch. 380; Holden v. McMakin, 1 Pars. 282. As to other points, Hart v. Ten Eyck, 2 Johns. Ch. 87, 88; Ringgold v. Ringgold, 1 Har. & Gill, 81, 82; Davenport v. Davenport, 1 Sim. Ch. 512; Chew's Appeal, 9 Wright, 230; Beatty v. Wray, 7 Harris, 516; Brown v. McFarland, 5 Wright, 129; Gow on Partn. 355.

R. W. Shenk and D. G. Eshelman, for Musselman, as to compensation, referred to Beatty v. Wray, 7 Harris, 516.

The opinion in Gyger's Appeal was delivered by

SHARSWOOD, J. The fifth assignment of error is, "in charging John Gyger interest prior to the settlement of accounts between the parties." Mr. Lindley remarks, that the principles upon which, in taking partnership accounts, interest is allowed or disallowed, do not appear to be well settled. 1 Lind. on Part. 649. In some cases it has been held, that the period of the dissolution of a partnership is

Gyger's Appeal-Musselman's Appeal.

the proper time to make a rest for this purpose. Stoughton v. Lynch, 2 Johns. Ch. 209; Hollister v. Barkley, 11 N. H. 501. Judge Story has laid down a different rule. "Interest," he says, "is not allowed upon partnership accounts generally, until after a balance is struck on a settlement between the partners, unless the parties have otherwise agreed or acted in their partnership concerns." Dexter v. Arnold, 3 Mason, 289. Vice-chancellor SANDFORD, of New York, in Beacham v. Eckford, 2 Sandf. Ch. 116, after a review of all the authorities, came to the conclusion that there is no general rule established, but that the allowance or refusal of interest depends upon the circumstances of each particular case. This seems much the safest principle to adopt, in view of the confidential relation of the parties, and the variety and complication of such accounts. No unbending rule could be laid down which would not, in particular instances, work great injustice.

[The remainder of this opinion, relating almost wholly to facts, is omitted.]

The opinion in Musselman's Appeal was delivered by

THOMPSON, C. J. We have considered all and every the exceptions of the appellants to the master's report, and decree of the court confirming it, and see nothing of which, we think, they have any just right to complain. We deem it unnecessary to examine, in detail, each of these exceptions, for, as to most of them, the master's report sufficiently vindicates the decree of the court.

The complaint that Gyger, the appellee, should have been charged for the "good-will" of the expired firm of John Gyger & Co., we think is without reason, under the circumstances of the case. It is true the agreement for dissolution, which extended the original period fixed for the dissolution of the firm for nearly three months, does say, that, on the 2d of July, 1859, the time at which the partnership is to expire," the said banking business, good-will, and all the privileges which the said firm enjoys, [shall] pass over to John Gyger." By this agreement, Gyger became the liquidating partner of the firm; and he was consequently invested with the powers and privileges of the firm in settling up its business. No doubt if he had sold the "good-will," he would have been obliged to have accounted for the value received. But then he would have been obliged to have given up the place in which the liquidation was intended to be made. This we can see would have been greatly disVOL. I.-49

Gyger's Appeal — Musselman's Appeal.

advantageous to the liquidating firm. He continued there, and opened business as a broker for his own benefit, and through this channel was enabled so to nurse the assets of the firm as to pay ail their debts, and realize a profit for the members of it. He evidently had the place for the purpose of liquidation, and for this purpose no good-will could be claimed. If his own business was benefited by the place as an established stand, the appellants' interests were also benefited by his business at that place, and in the manner in which it was managed. In equity, therefore, there was not a shadow of right in the claim for the good-will.

Nor at law was there any obligation on him to pay for the good-will. He did not agree to pay for it, and he did not sell it as such. Nor can I comprehend how it existed independently of the property. There was no relinquishment of business by the parties. Their business expired by its own limitation. They had no exclusive right in the business, that existed for a moment after the firm disolved, or any sole ownership of it as against any others; and these are the criteria of property in good-will, according to the English rule. Kennedy v. Lee, 3 Meriv. 441; Coll. on Partn. 156; Story on Partn. § 99. But, supposing the rule to be more extensive by usage with us, and I think it is, how can there be a good-will of a business in favor of the members of a firm, where the firm has ceased by its own limitation, and no exclusive right to follow the business in that place belongs to them? In that case, as a distinct property, it is gone. It then attaches to and enhances the realty, and the value of it is realized in renting or selling that. Here the appellee is charged with the rental of the place (see Gyger's Appeal, just read), and in this was included, of course, all the advantages belonging to it as a site. Afterward he disposed of it by sale, as part of the assets of the firm, and in this way the members have realized the appreciated value occasioned by their business, if any.

Good-will is property in some circumstances. Such it was held to be, in Williams v. Wilson & Mc Clelland, 4 Sandf. Ch. 479. There, two of the partners having been excluded by the wrongful act of a third, Vice-Chancellor SANDFORD decreed a dissolution, and sale of the lease for the unexpired term, together with the good-will of the business. That was unlike this case. There, the premises were leased for a business, and that business was relinquished by the decrec before its expiration. The good-will existed in the members for several years to come, and was property, in which each had an

Wolf v. Western Union Telegraph Company.

interest, and as such was sold. This case illust.ates the case in hand, and sustains our reasoning upon it. Without enlarging, we think the master and court were right in their views on this portion of the case, as well as in relation to the other matters complained of in this appeal.

WOLF, appellant, v. WESTERN UNION TELEGRAPH COMPANY.

(62 Pa. 83.)

Telegraph company-printed stipulations-limiting liability of.

A telegram, written upon a printed form containing certain terms, and subscribed by the sender, amounts to an agreement on the part of the sender that the telegram shall be sent according to such terms.

A condition, that a telegraph company "will not be liable for damages in any case, where the claim is not presented in writing sixty days after sending the message," is neither contrary to law, unreasonable, nor contrary to public policy.

ERROR to common pleas of Lancaster county.

The facts sufficiently appear in the opinion. The verdict below was in favor of the defendant (the telegraph company), under the direction of the court, from which plaintiff appeals.

W. R. Wilson and A. M. Frantz, for plaintiffs in error:

The defendants are liable, whether treated as common carriers, bailees for hire, or paid agents. Story on Bailments, § 489; Hays v. Kennedy, 5 Wright, 378; Story on Agency, §217; New Jersey R. R. Co. v. Kennard, 9 Harris, 203; Act of March 29, 1849, § 15, pamph. L. 266; Purd. 959, pl. 1; N. Y. & Wash. Tel. Co. v. Dryburg, 11 Casey, 298; 2 Pars. on Cont. 173; Scott & Jarnagin on Telegraphs, SS 242, 256; U. S. Tel. Co. v. Wenger, 5 P. F. Smith, 262. The conditions limiting liability of the defendants are not binding. Birney v. N. Y. & Wash. Tel. Co., 18 Md. 341. The type stating the conditions were obscure. Verner v. Sweitzer, 8 Casey, 208; Angell on Carriers, §§ 247, 257, 267, 268, 275; Camden & Amboy R. R. Co. ▼. Baldauf, 4 Harris, 67; Atwood v. Reliance Trans. Co., 9 Watts, 87; Scott & Jarnagin on Telegraphs, §§ 247, 248; Beckman v. Shouse, 5 Rawle, 179; Clark v. Spence, 10 Watts, 335. The company is