Green v Hertzog
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 08 October 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J1008-1 |
| Court | Court of Appeal |
| Date | 08 October 1954 |
[1954] EWCA Civ J1008-1
In the Supreme Court of Judicature.
Court of Appeal.
The Lord Chief Justice of England, Lord Goddard
Lord Justice Jenkins and
Lord Justice Morris.
Mr B.B. STENHAM (instructed by Messrs. Stafford Clark & Co., agents for Messrs. Faber & Co., Birmingham) appeared for the Plaintiff, Appellant.
Mr. A. LOGAN PETCH (instructed by Messrs. Alex Wolf & Turk, agents for Messrs. Franklyn & Co., Manchester) appeared for the First and Second Defendants.
Mr G.H. SPAFFORD (instructed by Messrs. Manches & Co., agents for Mr. John H. Franks, Manchester) appeared for the Third Defendant.
This is an appeal from Mr. Justice Oliver, who dismissed an action brought by the Plaintiff against two former partners of hers in a business and the personal representative of a deceased partner, to recover money lent. She brought the action for the balance of unsecured loans to the Defendants amounting in all to £2,350, against which she gives credit for a repayment of £350. There was a partnership deed in this case, and under the partnership deed it was provided that "On the termination of the partnership by any means whatever the partners shall be entitled to share in the assets of the partnership equally notwithstanding that the amount of capital of each shall have been contributed different amounts."
I pause there for a moment to say that the capital was contributed in somewhat different amounts. Why the lady who had contributed I think £700 should have agreed to this term it is rather difficult to understand, but there it is, she did agree to it - that on winding up of the partnership they should share the assets irrespective of the amounts which they contributed to capital.
But, no doubt because of that, a further clause was put in: "Should it at any future time be found expedient or necessary for further moneys to be provided by the partners for the purpose of carrying on the partnership business any moneys so provided by the partners shall be treated as a loan by the partner providing the same and such loan money shall carry interest at the rate of per cent. per annum from the date of each loan respectively." In other words, if more money was found to be required for the partnership and one partner was willing to find some money, it was not to be treated as part of the original capital so that they should have to share it irrespective of the amounts they had found, but it was to be treated as a loan.
Mr Stenham, with a courage which I somewhat envy, arguedbefore us that a partner cannot land money to a partnership of which he is a partner; but the case to which he called our attention seems to be exactly to the contrary. Although the words "creditor" and "debtor" are...
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