Rosenstein

In an action by an ex-partner for advancements alleged to have been made pursuant to an agree ment of copartnership, judgment was rendered in favor of the plaintiff, from which the defendant appealed.

The determination of questions presented by appellant depends upon the language of a contract in writing between the parties. The facts are not disputed, but he contends that the action should have been an equitable one for accounting. By the provisions of said contract it was agreed that both parties should deliver to the enterprise all fixtures, office equipment and merchandise share and share alike, to be used in common to their mutual benefit; that the respondent had invested $500 and would furnish additional sums but not to exceed $1500 in all, which should be repaid to him “out of the profits of said business before any division of profits shall be made by the parties hereto”. And further: “In the event said partnership business shall not be successful, second party agrees to take over all of the stock and fixtures and repay to first party all the moneys put into said business by first party and return to first party all of said office equipment contributed by said first party…