Rammelsberg et al. v. Mitchell and Lape.

berg & Co., St. Louis, Mo.' Either partner may use the name of the firm, but only for purposes connected with the business to be conducted; under no pretext shall Wm. Mitchell use the name, that is, indorse or become liable, for purposes not connected with the business.

"4. Wm. Mitchell is to receive fifteen hundred ($1,500) dollars per annum for his services, to be paid him out of the business as he may need it; he is to devote his whole time to the said business, and is not to engage in any other business during the copartnership.

"5. The profit and loss shall be equally divided between the three partners at the end of each business year (1st of July). Wm. Mitchell's share of the same shall remain in the business as capital until his investment equals that of the other partners (one-third), and after the 1st of July, eighteen hundred and fifty-six, he is to pay ten per cent. interest per annum on all capital he has less than one-third.

"6. The copartnership shall exist during the pleasure of the three partners, but may be dissolved by either partner, he giving six months' notice of the same in writing to the other two partners.

"7. The firm shall employ a bookkeeper, who shall at the close of each month furnish a condensed abstract of the business done during the month to Mitchell & Rammelsberg, in Cincinnati, and all goods bought of and furnished by them, shall be paid for as near as possible within four months after the purchase.

FREDERICK RAmmelsberg,
WM. MITCHELL,
ROBERT MITChell.”

Under this agreement, business was commenced in St. Louis, and was continued, notwithstanding the death of Rammelsberg on the 30th of January, 1863, until the month of January, 1864. At the latter date, an invoice and appraisement of the property of the firm of Mitchell, Rammelsberg & Co., personal and real, were taken and an account between the partners stated, which showed the interest of Mitchell & Rammelsberg in the firm to be $115,726.07,

Rammelsberg et al. v. Mitchell and Lape.

and that of William Mitchell to be $50,800.46. Thereupon Robert Mitchell and William H. Lape, executors and trustees, sold to William Mitchell the third interest of Rammelsberg's estate at that valuation, on about fourteen months' time, without interest.

Afterward, in February, 1864, Robert Mitchell purchased of William the one-sixth interest in the St. Louis house, under an agreement that the business there should be conducted by them as equal partners.

THE CINCINNATI HOUSE.-On the 12th of January, 1864, an invoice and appraisement were made of the personal ef fects of the firm, and of all real estate purchased with the joint means of Mitchell & Rammelsberg, amounting to the sum of $831,128.86, including the interest of the firm in the assets of Mitchell, Rammelsberg & Co., at St. Louis. This appraisement was made, under oath, by Thomas Smith, Benjamin P. Hinman, and Alexander P. Williamson, who had been selected by Robert Mitchell and William H. Lape for that purpose.

Afterward, on the 27th of February, 1864, a petition was filed in the Probate Court of Hamilton county, of which the following is a copy:

"The petition of Robert Mitchell, severally, survivor of Frederick Rammelsberg, deceased, who, with said Mitchell, were late partners in the manufacture and sale of furniture in the city of Cincinnati, county and state aforesaid, and of the said Robert Mitchell, jointly with William H. Lape, executors of the last will and testament of said Frederick Rammelsberg, deceased, states that the said Frederick Rammelsberg died on the 30th day of January, A. D. 1863, leaving a last will and testament which has been duly proven and admitted to record in this court, whereby said Mitchell and Lape were nominated as his executors, and directing, among other things, that the business of said copartnership should be carried on without change by said Mitchell, survivor, for one year from and after the decease of said Rammelsberg, for the mutual benefit of said Mitchell and the heirs of said deceased. That this provision and direction

Rammelsberg et al. v. Mitchell and Lape.

in said will was in pursuance of the terms of the articles of copartnership entered into between said Mitchell and Rammelsberg, about the 25th day of February, A. D. 1847, and under which they carried on said business from said date up to the time of the decease of said Rammelsberg. It was further expressly provided and agreed, by said articles of copartnership, that in the event of the death of either of said partners, the survivor should have a whole year from and after the termination of said year last aforesaid, to settle up the business of said copartnership.

"That is to say, said survivor, after carrying on said business for a year after the death of his copartner, was to be allowed an additional year to settle up said business.

"The petitioner further states that, in pursuance of said will and articles of copartnership, the said Robert Mitchell did continue and carry on said copartnership business, under their said copartnership name, and for the joint benefit of the said survivor and the heirs of said deceased for said additional year, which year ended on the 30th day of January, A. D. 1864.

"The petitioner desiring now to close and settle up said copartnership business in pursuance of the statute in such case made and provided, entitled 'An act regulating the duties of surviving partners,' passed March 21, A. D. 1861, pray your honor to nominate and appoint three appraisers, whose duty it shall be to make out, under oath, a full and complete inventory and appraisement of the entire assets and liabilities of such partnership, to be returned to your honor and filed in this court, as provided for in said statute.

"And that said survivor, Robert Mitchell, may have the privilege, with the consent of the said William H. Lape, as executor of Frederick Rammelsberg, deceased, to take the assets of such partnership at the appraised value thereof, first deducting therefrom the debts and liabilities of such partnership, upon his complying with the terms of purchase set forth in the third section of said statute herein above referred to.

"By KING & THOMPSON, Attorneys.”

Rammelsberg et al. v. Mitchell and Lape.

On this application the probate court appointed Thomas B. Smith, Alexander W. Williamson, and Benjamin P. Hinman "appraisers, to make out, under oath, a full and complete inventory and appraisement of the entire assets and liabilities of the late partnership of Mitchell & Rammelsberg, and forthwith deliver the same to the court."

On the second day of March, 1864, the appraisers made return, under oath, and thereupon the court made an order. as follows:

"In the matter of the estate of Frederick Rammelsberg, deceased.

"The appraisers heretofore appointed by this court, on the 27th day of February, A. D. 1864, to make out, under oath, a full and complete inventory and appraisement of the entire assets and liabilities of the late partnership of Mitchell & Rammelsberg, and to whom an order to appraise was issued out of this court, on the 29th day of February, A. D. 1864, having this day returned to this court the said order, with the inventory and appraisement by them made thereunder, and the court having carefully examined the same, finds that all their proceedings have been and are, in all respects, regular and in pursuance of the statute in such case made and provided, and the same are hereby approved and confirmed. And it appearing by said inventory and appraisement that the whole interest of the estate of said Frederick Rammelsberg in said co-partnership assets, over and above all liabilities of said partnership or charges against him, amounts to $394,709.74, including his share of the assets of the firm of Mitchel, Rammelsberg & Co., at St. Louis, which is $57,803.03, as appears by said inventory and appraisement; and it further appearing that said Robert Mitchell and William H. Lape, as executors of said Rammelsberg, have already sold said interest in the firm or partnership at St. Louis to William Mitchell, for the price of $57,863.03, it is therefore deducted from said sum of $394,709.74, above named, leaving a balance due said estate of Frederick Rammelsberg of $336,846.71.

"And the said surviving partner, Robert Mitchell, now

Rammelsberg et al. v. Mitchell and Lape.

appearing in court, and electing to take the assets of said late co-partnership at the appraised value thereof, and assume the liabilities thereof, and the said Wm. H. Lape, acting in this behalf as sole executor as aforesaid, also appearing in the court and assenting thereto, and the court deeming such disposition of the assets proper and advantageous to the distributees interested in the estate of said Frederick Rammelsberg, it is ordered and adjudged that said Mitchell take such assets in said inventory returned, and that said Wm. II. Lape, acting in this behalf, as sole executor as aforesaid, execute and deliver to him, the said Mitchell, an assignment and transfer, in due form of law, for the share of said Rammelsberg's estate in all said assets, upon his, said Mitchell, executing and delivering to said. Wm. H. Lape, executor as aforesaid, his promissory note for said sum of $336,846.71, payable nine months after date, with good and approved security, as required by said act passed March 21st, 1861, under which these proceedings are had. And upon the said Robert Mitchell giving bond and satisfactory security to the said William H. Lape, acting sole executor of said Rammelsberg, for the payment of the debts and liabilities of said partnership.

"Filed, March 2, 1864."

The inventory returned by the appraisers to the probate court was a copy of the invoice made by the same parties, of the date of January 12th preceding. The property inventoried was set out by items, and, in addition to the personal effects of the firm, embraced all real estate which had been purchased with partnership funds, parcels of which were situate in different states and in several counties in this state.

All the real estate so purchased and inventoried, as well as the profits and expenses thereof, had been uniformly regarded and treated by the partners as partnership assets; yet certain parcels only were used in carrying on the business of the firm, while other parcels were rented and used for other purposes, and were held as mere investments.