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Smith v. Welker

October 8, 1954

DR. D. V. SMITH, APPELLANT,
v.
DR. GEORGE WELKER, JR., APPELLEE



Combs

The parties to this action are practicing physicians in the town of Morganfield. On January 1, 1949 they executed a partnership agreement by which they agreed to practice as partners under the name of Smith Clinic.

This action was filed by Dr. Welker. He stated in his petition that Dr. Smith had been physically disabled within the meaning of a provision of the partnership agreement, and asked that the partnership be dissolved. Dr. Smith denied the allegations of the petition and by counter-claim charged that Dr. Welker's conduct amounted to withdrawal by him from the partnership and sought to invoke a provision of the partnership agreement which would prevent Dr. Welker from practicing medicine within a radius of 50 miles of Morganfield for a period of five years.

The chancellor was of the opinion that neither party had proved the allegations of his petition. He dissolved the partnership, directed that each of the doctors is entitled to one-half of the partnership assets, and adjudged that each party pay one-half of the court cost.

The case presents purely a factual situation. We have examined the evidence carefully and are of the opinion the chancellor reached the only conclusion possible under the circumstances. Although we do not regard it as material, we think that after the chancellor announced his decision he properly refused to permit Dr. Smith to withdraw that part of his answer in which he had charged that Dr. Welker's conduct amounted to a withdrawal from the partnership.

The judgment is affirmed.

19541008

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