
    Israel P. Grant, Respondent, v. Alice P. Smith, as Sole Executrix, etc., of Lewis M. Smith, Deceased, Appellant, Impleaded with Alice P. Smith, Individually, and Others.
    
      Partnership accounting—when the partner's are, and when they are not, entitled to interest on money advanced to the firm.
    
    Where the shares of the several members of a copartnership in the partnership profits depend upon the amount of capital furnished by them, respectively, interest should not, upon an accounting between the partners, be allowed on money furnished by the several partners as part of the original capital or as an addition thereto, but when the amount to be furnished by each partner is fixed and certain and the share of each of the respective partners in the partnership profits is a fixed proportion thereof, advances by one of the partners, in excess of his prescribed proportion, although credited to the special account of such partner and called capital of the firm, are, as between the partners, ' loans and advancements for the benefit of the partnership and interest should be allowed thereon.
    Appeal by the defendant, Alice P. Smith, as sole executrix, etc., of Lewis M. Smith, deceased, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 27th; day of May, 1901, upon the report of a referee in an action for an accounting.
    
      A. C. Eustace and J. P. Eustace, for the appellant.
    
      H. H. Rockwell, for the respondent.
   Chase, J.:

This is an action for an accounting. The plaintiff and the defendant’s intestate were partners. Their respective interests in the partnership and the amount that each was to contribute to the capital of the firm was fixed and certain. The only question arising on this appeal relates to the allowance to the plaintiff of interest on the amounts advanced, paid out and expended by him for the benefit of the partnership in excess of the amount required by the partnership agreement.

The rule in regard to the allowance of interest on an accounting between partners has been recently stated by the Court of Appeals in the case of Rodgers v. Clement (162 N. Y. 422). In that case the court say: If the moneys advanced by the plaintiff to the firm were contributions of capital or additions to plaintiff’s' capital, then he was not-entitled to interest on the same since he must rely upon the profits of the business to compensate him for the investment unless there was a special agreement between the partners that interest should be allowed. * * *

“ But, on the other hand, if the moneys so paid or advanced by the plaintiff for the use of the firm were in fact loans, and the plaintiff as to such advances was a creditor of the firm, he stands upon the same footing as any other creditor with respect to the right to be allowed interest upon the accounting. A partner may loan money to the firm of which he is a member, and when he does his right to interest is to be determined in the same way as that of any other creditor. ■ In such cases the general rule is to allow interest upon the advances, although there was no express agreement by the firm to j)ay it, in the absence of some agreement to the contrary, express or implied. The right to interest, or an agreement to pay or allow it, is to be implied in such cases' without any express promise as in like transactions between- parties holding no partnership relations to each other.”

Where the share of the several partners in a partnership venture depends upon the capital furnished by them, respectively, it is very clear that interest should not be allowed on moneys furnished to the partnership as capital, either under the original agreement or as additions thereto, but when the amount to be furnished by each partner is fixed and certain, and the share of each of the respective partners in the profits of the partnership venture is a fixed proportion thereof, advances by one of the partners in excess of his prescribed proportion, although credited to the special account of such partner and called capital of the firm, are in fact, as between the partners, loans and advancements for the benefit of the partnership^ and equity requires that interest should be allowed thereon. We see no reason for interfering with the findings of the referee herein, and such findings are sufficient to sustain the judgment. Judgment should be affirmed, with costs.

All concurred.

Judgment unanimously affirmed, with costs.  