Longley Supply Co. of New Bern, Inc. v. Styron , 26 N.C. App. 55 ( 1975 )

214 S.E.2d 777 (1975)

LONGLEY SUPPLY COMPANY OF NEW BERN, INC.
v.
R. L. STYRON and R. G. Styron, Trading as Styron Plumbing, Heating & Air Conditioning Co.

No. 753SC136.

Court of Appeals of North Carolina.

May 21, 1975.

Henderson, Baxter & Davidson by David S. Henderson, and Gerard H. Davidson, Jr., New Bern, for codefendant-appellant.

Hamilton, Bailey & Fisher by Glenn B. Bailey, Morehead City, for codefendant-appellee.

CLARK, Judge.

From a careful review of the terms of paragraph "6" of the dissolution agreement quoted above, it is obvious that its application to any division of funds depended implicitly on there being a surplus of accounts receivable over accounts payable. The second sentence, in particular, points out that the parties to the dissolution were in fact contemplating that there would be excess accounts receivable over accounts payable. Neither paragraph "6" nor any other provision in the contract deals with the reverse situation. Consequently, in view of the contemplation of the parties as is disclosed in paragraph "6" and the absence of other pertinent contract provisions dealing with excess accounts payable, we find simply that the dissolution agreement failed to treat the subject.

We note that the judgment of the trial court finding joint and several liability was based upon the finding that the paragraph in question was ambiguous in that it was susceptible of more than one interpretation. Consequently, it construed the paragraph against Ralph Styron who prepared it and found that it was contemplated that the brothers would share liabilities as well as profits. Insofar as the judgment was based upon such a finding, we disagree, however, for purposes of liability, we reach the same result. Since the agreement was silent relative to what the parties actually contemplated under an excessive accounts payable predicament and absent any pertinent agreement relating thereto, the appropriate statutory provisions of the Uniform Partnership Act, Chapter 59, Article 2 of the General Statutes apply. Under G.S. § 59-66(a), the dissolution of a partnership does not of itself discharge the existing liability of any partner and absent an agreement under G.S. § 59-48(1), each partner must contribute towards the losses sustained by the partnership according to his share of the profits. The effect of these provisions creates liability for Ralph Styron, requiring him to contribute his share of the losses incurred to the date of the dissolution.

Lastly, the trial court found joint and several liability with respect to the entire stipulated sum of $10,433.45. This amount, however, was computed effective September 14. Between August 7 and September 14, Styron Plumbing incurred an additional $762.07 of accounts payable due plaintiff. On August 7, the effective date of dissolution, there was only $9,671.38 due. Consequently, codefendant Ralph Styron's obligation for a contributive share should be computed with reference to this latter figure and the judgment of the trial court is so modified.

Affirmed as modified.

MORRIS and VAUGHN, JJ., concur.