The Law of Partnership

Partnership contracts have been found, by experience, to be convenient to persons engaged in trade, and useful to the community. Merchants are thereby enabled to consolidate their credit, and extend their business. With the aid of joint counsel and accumulated capital, a spirit of enterprise is sensibly awakened, and boldness of plan and vigor of exertion communicated to mercantile concerns. Partnerships have grown with the growth, and multiplied with the extension of trade; and the law by which they are regulated has been improved by the study and adoption of the best usages which the genius of commerce has introduced. It has also been cultivated and greatly enlarged, under a course of judicial decisions, until the law of partnership has at last attained the precision of a regular branch of science, and forms a distinguished part of the code of commercial jurisprudence.

In treating of this subject, I shall consider, (I.) the nature, creation, and extent of partnerships; (2.) the rights and duties of partners, in their relation to each other, and to the public; (3.) the dissolution of the contract.

I. Of the nature, creation, and extent of partnerships.

Partnership is a contract of two or more persons, to place their money, effects, labor and skill, or some, or all of them, in lawful commerce or business, and to divide the profit, and bear the loss, in certain proportions.¹ If one person advances funds, and another furnishes his personal services or skill, in carrying on a trade, and is to share in the profits, it amounts to a partnership.² But each party must engage to bring into the common stock something that is valuable; and a mutual contribution of that which has value, and can be appreciated, is of the essence of the contract.³ Credit alone seems not to be sufficient, according to Pothier, because not of itself a thing of value;⁴ but credit is of great value in a mercantile sense, and it would be difficult for a person to lend his credit permanently to a partnership, without incurring responsibility as a partner. It would be a valid partnership, notwithstanding the whole capital was, in the first instance, advanced by one party, if the other contributed his time and skill to the business, and although his proportion of gain and loss was to be very unequal. It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or in lieu of brokerage, and that he be received into the association as a merchant, and not as an agent.⁵

A joint possession renders persons tenants in common, but it does not, of itself, constitute them partners; and, therefore, surviving partners, and the representatives of a deceased partner, are not partners, notwithstanding they have a community of interest in the joint stock.⁶ There must be a communion of profit to constitute a partnership as between the parties. They must not be jointly concerned in the purchase only, but jointly concerned in the future sale. A joint purchase, with a view to separate and distinct sales by each person on his own account, is not sufficient. If several persons, who had never met and contracted together as partners, agree to purchase goods in the name of one of them only, and to take aliquot shares of the purchase, and employ a common agent for the purpose, they do not, by that act, become partners, or answerable to the seller in that character, provided they are not to be jointly concerned in the resale of their shares, and have not permitted the agent to hold them out as jointly answerable with himself.⁷ The same distinction was known in the civil law: qui nolunt inter se contendere, solent per nuntium rem emere in commune; quod asocietate longere motum.⁸ It has been repeatedly recognized in this country, and may be considered as a settled rule.⁹

If the purchase be on separate, and not on joint account, yet if the interests of the purchasers are afterwards mingled, with a view to a joint sale, a partnership exists from the time that the shares are brought into a common mass.¹⁰ A participation in the loss or profit, or holding himself out to the world as a partner, so as to induce others to give credit on that assurance, renders a person responsible as a partner.¹¹ A partnership necessarily implies the union of two or more persons; and if a single individual, for the purpose of a fictitious credit, was to assume a copartnership name or firm, the only real partnership principle that could he applicable to his case, would be the preference to be given to creditors dealing with him under that description, in the distribution of his effects. But that would be inadmissible, and contrary to the grounds upon which partnerships are created and sustained; and so the law on this point has, in another country, been understood and declared.¹² If the partnership consists of a large unincorporated association, it is usually regulated by special agreement; but the established law of the land in reference to such partnerships, is the same as in ordinary cases, and every member of the association (whatever private arrangement there may be to the contrary between the member, and which is only a mischievous delusion) is liable for all the debts of the concern.¹³

It is, however, the judicial language in some of the cases,¹⁴ that the members of a private association may limit their personal responsibility, if there be an explicit stipulation to that effect, made with the party with whom they contract, and clearly understood by him at the time. But stipulations of that kind are looked upon unfavorably, as being contrary to the general policy of the law; and it would require a direct previous notice of the intended limitation to the party dealing with the company, and his clear understanding of the terms of the limitation. Incorporated companies, though constituted expressly for the purposes of trade, are not partnerships, or joint traders, within the purview of the law of partnership, and the stockholders are not personally responsible for the company’s debts or engagements, and their property is affected only to the extent of their interest in the company. To render them personally liable, requires an express provision in the act of incorporation; and a disposition to create such an extended responsibility, seems to be increasing in our country, and it is calculated to check the enterprise of such institutions, and impair the credit and value of them as safe investments of capital.

Though there be no express articles of copartnership, the obligation of a partnership engagement may equally be implied in the acts of the parties; and if persons have a mutual interest in the profits and loss of any business carried on by them, or if they hold themselves out to the world as joint traders, they will be held responsible as partners to third persons, whatever may be the real nature of their connection, or of the agreement under which they act. If a person partakes of the profits, he is answerable as a partner for losses, on the principle, that by taking a part of the profits, he takes from the creditors a part of the fund which is the proper security for the payment of their debts.¹⁵ Though there should even be a mutual understanding between the members of an association, that they should not be partners, and that the party sought to be charged as a partner was not to contribute either his money or labor, or to partake of the profits, yet, in suite of these stipulations, he becomes a partner as against the rest of the world, if he lends his name to the company. The rule is founded on principles of general policy, to prevent the frauds to which creditors would otherwise be exposed.¹⁶

It is not essential to a legal partnership, that it be confined to commercial business. It may exist between attorneys, conveyancers, mechanics, artisans, or farmers; as well as between merchants or bankers.¹⁷ The essence of the association is, that they be jointly concerned in profit and loss, or in profit only, in some honest and lawful business, not immoral in itself, nor prohibited by the law of the land; and this is a principle of universal reception.¹⁸ The contract must be for the common benefit of all the parties to the association, and though the shares need not be equal, yet, as a general rule, all must partake of the profit in some rateable proportion, and that proportion, as well as the mode of conducting the business, may be modified and regulated by private agreement, at the pleasure of the parties. If there be no such agreement on the subject, the general conclusion of law is, that the partnership tosses are to be equally borne, and the profits equally divided;¹⁹ and this would be the rule, as I apprehend, even though the contribution between the parties consisted entirely of money by one, and entirely of labor by another. In equity, according to Pothier, each partner should share in the profit in proportion to the value of what he brings into the common stock, whether it be money, goods, labor, or skill; and he should share in the loss in a ratio to the gain to which he would, in a prosperous issue to the business, have been entitled. He admits, however, that the proportion of gain and loss may be varied by agreement, and the agreement may render the extra labor of one of the concern, equal to the risk of loss, and a substitute for his share of loss.²⁰

It is not necessary that every member of the company should, in every event, participate in the profits. It would be a valid partnership, according to the civil law, if one of the members had a reasonable expectation of profit, and was, in consequence of his particular art and calling, employed to sell, and to have a share of the profits if they exceeded a certain sum, provided this was granted to him by reason of his pains and skill, and not as a gratuity.²¹ So, one partner may retire under an agreement to abide his proportion of risk of loss, and take a sum in gross for his share of future uncertain profits, or he may take a gross sum as his share of the presumed profits, with an agreement that the remaining partners are to assume all risks of loss.²² But a partnership, in which the entire profit was to belong to some of them, in exclusion of others, would be manifestly unjust and illegal. It would be what the Roman lawyers called societas leonina, in allusion to the fable of the lion, who, having entered into a partnership with the other animals of the forest, in hunting, appropriated to himself all the prey.²³

There may be a general partnership at large, or it may be limited to a particular branch of business, or to one particular subject.²⁴ If two persons should draw a bill of exchange, they are considered as partners in respect to the bill, though in every other respect they remain distinct. By appearing on the bill as partners, the person to whom it is negotiated is to collect the relation of the parties from the bill itself, and they are not permitted to deny the conclusion.²⁵ This principle has not been extended to the case of two persons signing a joint note,²⁶ though it is not easy to perceive a distinction between the cases.²⁷

There is no difficulty, in the ordinary course of business, with the case of an actual partner, who appears in his character of an ostensible partner. The question as to the person on whom the responsibility of partner ought to attach in respect to third persons, arises in the case of dormant partners, who participate in the profits of the trade, and conceal their names. They are equally liable when discovered, as if their names had appeared in the firm, and although they were unknown to be partners at the time of the creation of the debt.²⁸ The question arises also in the case of a nominal partner, who has no actual interest in the trade, or its profit, but becomes responsible as a partner by suffering his name to appear to the world as a partner, by which means he lends to the partnership the sanction of his credit. There is a just and marked distinction between partnership as respects the public, and partnership as respects the parties; and a person may be held liable as a partner to third persons, although the agreement does not create a partnership as between the parties themselves. Though the law allows parties to regulate their concerns as they please in regard to each other, they cannot, by arrangement among themselves, control their responsibility to others; and it is not competent for a person who partakes of the profits of a trade, however small his share of those profits may be, to withdraw himself from the obligations of a partner.

Each individual member is answerable in solido to the whole amount of the debts, without reference to the proportion of his interest, or to the nature of the stipulation between him and his associates. By partaking of the profits, he diminishes the fund which ought to be applied to the payment of the debts of the company. Even if it were the intention of the parties that they should not be partners, and the person to be charged was not to contribute either money or time, or to receive any part of the profits, yet if he lends his name as a partner, or suffers his name to continue in the firm after he has ceased to be an actual partner, he gives credit to the house; and if he were permitted, as against creditors, to deny the partnership, the greatest fraud and injustice would be practiced. These principles are clearly settled, and are now regarded by the English courts as fundamental doctrines;²⁹ and they have been as explicitly asserted with us, and are now incorporated into the jurisprudence of this country.³⁰ So strict is the law on this point, that even if executors, in the disinterested performance of a trust, continue the testator’s share in a partnership concern in trade, for the benefit of his infant children, they may render themselves personally liable as dormant partners.³¹

A person may be allowed, in special cases, to receive part of the profits of a business without becoming a legal or responsible partner. To allow a clerk, or agent, a portion of the profits of sales as a compensation for labor, or a factor such a percentage on the amount of sales, does not render the agent or factor a partner, when it appears to be intended merely as a mode of payment adopted to increase and secure exertion, and when it is not understood to be an interest in the profits in the character of profits. Seamen take a share by agreement with the ship-owner, in the profits of a whale fishery, by way of compensation for their services; and shipments from this country to India, upon half profits, are usual, and the responsibility of partners has never been supposed to flow from such special agreements.³² This distinction seems to be definitely established by a series of decisions, and it is not now to be questioned; and yet Lord Eldon regarded the distinction with regret, and mentioned it frequently with pointed disapprobation, as being too refined and subtle, and the reason of which, he said, he could not well comprehend.³³

The English law does not admit of partnerships with a restricted responsibility. In many parts of Europe, limited partnerships are admitted, provided they be entered on a register.³⁴ Thus, in France, by the ordinance of 1673, limited partnerships (la Societe en commondite) were established, by which one or more persons, responsible in solid as general partners, were associated with one or more sleeping partners, who furnished a certain proportion of capital, and were liable only to the extent of the funds furnished. This kind of partnership has been continued and regulated by the new code of commerce;³⁵ and it is likewise introduced into the Louisiana code, under the title of partnership in commendam.³⁶ It is supposed to be well calculated to bring dormant capital into active and useful employment; and this species of partnership has, accordingly, been authorized by a recent statute of New York.³⁷ By that statute a limited partnership may consist of one or more partners jointly and severally responsible according to the existing laws, who are called general partners, and one or more partners who furnish certain funds to the common stock, and whose liability shall extend no further than the fund furnished, and who are called special partners. The names of the special partners are not to be used in the firm, nor are they to transact any business on account of the partnership, or be employed for that purpose as agents, attorneys, or otherwise; but they may, nevertheless, advise as to the management of the partnership concern. Before such a partnership can act, a register must be made in the clerk’s office of the county, with an accompanying affidavit, and certificate of the title of the firm, and the names of the partners, and the amount of capital furnished by the special partners, and the period of the partnership, and the capital advanced by the special partners, must be in cash. No such partnership can make assignments or transfers, or create any lien, with the intent to give preference to creditors. The special partners may receive an annual interest on the capital invested, provided there be no reduction of the original capital; but they cannot be permitted to claim as creditors, in case of the insolvency of the partnership. It is easy, to perceive, that the provisions of the act have been taken, in most of the essential points, from the French regulations in the commercial code, and it is the first instance in the history of the legislation of this stare, that the statute law of any other country than that of Great Britain, has been closely imitated and adopted.

It is a general and well established principle, that when a person joins a partnership as a member, he does not, without a special promise, assume the previous debts of the firm, nor is he hound by them. To render persons jointly liable upon a contract as partners, they must have a joint interest contemporary with the formation of the contract.³⁸ If, however, ‘s goods are purchased in pursuance of a previous agreement between two or wore persons, that one of them should purchase the goods on joint account, in a foreign adventure, they are all answerable to the seller for the price, as partners, even though their names were not announced to the seller; for the previous agreement made the partnership precede the purchase, and a joint interest attached in the goods at the instant of the purchase.³⁹

II. Of the rights and duties of partners in their relation to each other, and to the public.

(1.) Of the interest of partner, in their stock in trade.

Partners are joint tenants of their stock in trade, but without the jus accrescendi, or right of survivorship; and this, according to Lord Coke,⁴⁰ was part of the law merchant, for the advancement and continuance of commence and trade. It would seem, however, to have been a point of some doubt as late as the middle of the seventeenth century, whether the doctrine of survivorship did not apply; for the Lord Keeper, in Jeffereys v. Small,⁴¹ observed, that it was common, at that time, for traders, in articles of copartnership, to provide against survivorship, though he declared, that the provision was clearly unnecessary. On the death of one partner, his representatives become tenants in-common with the survivor, and with respect to choses in action, survivorship so far exists at law, that the remedy to reduce them into possession vests exclusively in the survivor, for the benefit of all the parties in interest.⁴² But no partner has an exclusive right to any part of the joint stock, until a balance of accounts be struck between him and his co-partners, and the amount of his interest accurately ascertained. The interest of each partner in the partnership property, is, his share in the surplus, after the partnership accounts are settled, and all just claims satisfied.⁴³

If partnership capital be invested in land for the benefit of the company, though it may be a joint tenancy in law, yet equity will hold it to be a tenancy in common, and as forming part of the partnership fund; and the better opinion would seem to be, that equity will consider the person in whom the legal estate is vested, as trustee for the whole concern, and the property will be entitled to be distributed as personal estate.⁴⁴ The same point has been extensively discussed and considered in this country, and the weight of authority, and the reason and justice of the case undoubtedly is, that real estate acquired with partnership funds, and held by partners in common, may be conveyed or charged by one partner, on his private account, to the extent of his legal title whether that legal title covers the whole, or a part of the estate, provided the purchaser or mortgagee dealt with him bona fide, and without notice of the partnership rights, and there was nothing in the transaction from which notice might reasonably be inferred.⁴⁵ In Tennessee, an estate so held in joint tenancy by partners for the purposes of trade, may be sold by the survivor, in whom is the legal title; but he will be subject to account to the representatives of the deceased partner for their proportion of the proceeds.⁴⁶ In this state, the Supreme Court, upon the strength of the ultimate opinion of Lord Thurlow, in Thornton v. Dixon, and of the opinion of the Master of the Rolls, in Balmain v. Shore, declared, in Coles v. Coles,⁴⁷ that the principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, did not apply to real estates, and that in the absence of special covenants between the parties, real estate owned by partners, was to be considered and treated as such, without any reference to the partnership. The language of the Supreme Court of Massachusetts in Goodwin v. Richardson,⁴⁸ is nearly to the same effect; and it seemed to be considered, that partners, purchasing an estate out of the joint funds, and taking one conveyance to themselves as tenants in common, would hold their undivided moieties in separate and independent titles, and that the same would go, on the insolvency of the firm, or on the death of either, to pay their respective creditors at large.

These latter cases, and particularly the one in New York, go to the entire subversion of the equity doctrine now prevalent in England; but the other American decisions. are more restricted in their operation, and are not inconsistent with the most correct and improved view of the English law. Their object is to secure the rights of purchasers and encumbrances without notice, from being affected by a claim of partnership rights of which they were ignorant. In Edgar v. Donnally,⁴⁹ a right to land had been acquired with partnership stock, and a title taken in the name of the surviving partner, and a claimant under the deceased partner was held entitled in equity to a moiety of the land, against a purchaser from the survivor, with notice of the partnership right. This was a recognition of the true rule of equity on the subject.

In Nicoll v. Mumford,⁵⁰ it, was held, that ship owners were tenants in common, and were not to be considered as partners, nor liable each in solido, nor entitled in the settlement of accounts, on the principle of partnership. The doctrine of Lord Hardwicke on this point, in Doddington v. Hallet,⁵¹ was considered to be overruled by the modern decisions in chancery,⁵² and by the universal understanding in the commercial world. But when the case of Nicoll v. Mumford was reviewed in the Court of Errors,⁵³ the doctrine of Lord Hardwicke was considered, by the majority of the judges, to be the better doctrine; and no doubt there may be a special partnership in a ship, as well as in the cargo, in regard to a particular voyage or adventure. It was assumed by the court in Lamb v. Durant,⁵⁴ that vessels, as well as other chattels, might be held in strict partnership, with all the control in each partner incident to commercial partnerships.

(2.) Acts by which one Partner may bind a firm.

The act of each partner in transactions relating to the partnership, is considered the act of all, and binds al I. He can buy and sell partnership effects, and make contracts in reference to the business of the firm, and pay and receive, and draw and endorse, and accept bills and notes. Acts in which they all unite, differ in nothing in respect to legal consequences, from transactions in which they are concerned individually; but it is the capacity by which each partner is enabled to act as a principal, and as the authorized agent of his copartners, that gives credit and efficacy to the association. The act of one partner, though on his private account, and contrary to the private arrangement among themselves, will bind all the parties, if made without knowledge in the other party of the arrangement, and in a matter which, according to the usual course of dealing, has reference to business transacted by the firm.⁵⁵

The books abound with numerous and subtle distinctions on the subject of the extent of the power of one partner to bind the company, and I shall not attempt to do more than select the leading rules, and give a general analysis of the cases.

In all contracts concerning negotiable paper, the act of one partner binds all; and even though he signs his individual name, provided it appears, on the face of the paper, to be on partnership account, and to be intended to have a joint operation.⁵⁶ But if a bill or note be drawn by one partner in his own name only, and without appearing to be on partnership account, the partnership is not bound by the signature, even though it was made for a partnership purpose.⁵⁷ If, however, the bill be drawn by one partner in his own name, upon the firm, on partnership account, the act of drawing has been held to amount, in judgment of law, to tin acceptance of the bill by the drawer in behalf of the firm, and to bind the firm as an accepted bill.⁵⁸ And though the partnership be not bound at law in such a case, it is held, that equity will enforce payment from it, if the bill was actually drawn on partnership account.⁵⁹ Even if the paper was made in a case which was not in its nature a partnership transaction, yet it will bind the firm if it was done in the name of the firm, and there be evidence that it was done under its express or implied sanction.⁶⁰

But if partnership security be taken from one partner, without the previous knowledge and consent of the others, for a debt which the creditor knew at the time was the private debt of the particular partner, it would be a fraudulent transaction, and clearly void in respect to the partnership.⁶¹ So, if from the subject matter of the contract, or the course of dealing of the partnership, the creditor was chargeable with constructive knowledge of that fact, the partnership is not liable.⁶² There is no distinction in principle upon this point between general and special partnerships, and the question, in all cases, is a question of notice, express or constructive. All partnerships are more or less limited. There is none that embraces, at the same time, every branch of business; and when a person deals with one of the partners in a matter not within the scope of the partnership, the intendment of law will be, unless there be circumstances, or proof in the case, to destroy the presumption, that he deals with him on his private account, notwithstanding the partnership name be assumed.⁶³

The conclusion is otherwise, if the subject matter of the contract was consistent with the partnership business, and the defendants would be bound to show that the contract was out of the regular course of the partnership dealings.⁶⁴ When the business of a partnership is defined, known, or declared, and the company do not appear to the world in any other light than the one exhibited, one of the partners cannot make a valid partnership engagement, except on partnership account. There must be at least some evidence of previous authority beyond the mere circumstance of partnership, to make such a contract binding. If the public have the usual means of knowledge given them, and no acts have been done or suffered by the partnership to mislead them, every mart is presumed to know the extent of the partnership with whose members he deals; and when a person takes a partnership engagement without the consent or authority of the firm, for a matter that has no reference to the business of the firm, and is not within the scope of its authority, or its regular course of dealing, he is, in judgment of law, guilty of a fraud.⁶⁵

If, however, the negotiable paper of a firm be given by one partner on his private account, and that paper, issued within the general scope of the authority of the firm, passes into the hands of a bona fide holder, who has no, notice, either actually or constructively, of the consideration of the instrument; or if one partner should purchase, on his private account, an article in which the firm dealt, or which had an immediate connection with the business of the firm, a different rule applies, and one which requires the knowledge of its being a private, and not a partnership transaction, to be brought home to the claimant. These are general principles, which are considered to be well established in the English and American jurisprudence.⁶⁶

With respect to the power of each partner over the partnership property, it is settled, that each one, in ordinary cases, and in the absence of fraud on the part of the purchaser, has the complete jus disponendi of the whole partnership interests, and is considered to be the authorized agent of the firm. He can sell the effects, or compound or discharge the partnership debts. This power results from the nature of the business, and is indispensable to the safety of the public, and the successful operations of the partnership.⁶⁷ A like power in each partner exists in respect to purchases on joint account, and it is no matter with what fraudulent views the goods were purchased, or to what purposes they. are applied by the purchasing partner, if the seller be clear of the imputation of collusion. A sale to one partner, in a case within the scope and course of the partnership business, is, in judgment of law, a sale to the partnership.⁶⁸ But if the purchase be contrary to a stipulation between the partners, and that stipulation be made known to the seller, or if, before the purchase or delivery, one of the partners expressly forbids the same on joint account, it has been repeatedly decided, that the seller must show a subsequent assent of the other partners, or that the goods came to the use of the firm.⁶⁹

This salutary check to the power of each partner to bind the firm, was derived from the civil law. In re pari potiorem causum esse prohibentis constat.⁷⁰ It has been questioned, however, whether the dissent of one partner, where the partnership consists of more than two, will affect the validity of a partnership contract in the usual course of business, and within the scope of the concern,, made by the majority of the firm. The efficacy of the dissent was, in some small degree, shaken by the Court of Exchequer in Rooth v. Quin;⁷¹ and in Kirk v. Hodgson,⁷² it was considered, that the act of the majority, done in good faith, must govern in copartnership business, and control the objection of the minority, unless special provision in the articles of association be made to the contrary. But this last decision related only to the case of the management of the interior concerns of the partners among themselves, and to that it is to be confined. The weight of authority is decidedly in favor of the power of a partner to interfere and arrest the firm from the obligation of an inchoate purchase which is deemed injurious. This is the rule in France in ordinary commercial partnerships; and yet, if by the terms of the partnership, the management of its business be confined to one of the partners, the exercise of his powers in good faith, will he valid even against the will, and in opposition to the dissent, of the other members.⁷³

A partner may pledge, as well as sell, the partnership effects, in a case free from collusion, if done in the usual mode of dealing, and it has relation to the trade in which the partners are engaged, and when the pawnee had no knowledge that the property was partnership property.⁷⁴ But this principle does not extend to part owners engaged in a particular purchase, for they are regarded as tenants in common, and no member can convey to the pawnee a greater interest than he himself has in the concern.⁷⁵ And if one partner acts fraudulently with strangers in a matter within the scope of the partnership authority, the firm is, nevertheless, bound by the contract. The connection itself is a declaration to the world of the good faith and integrity of the members of the association, and an implied undertaking to be responsible for the acts of each within the compass of the partnership concerns.⁷⁶

It was formerly understood, that one partner might bind his copartners by a guaranty, or letter of credit, in the name of the firm;⁷⁷ and Lord Eldon, in the case Ex parte Gordon,⁷⁸ considered the point too clear for argument. But a different principle seems to have been adopted and it is now held, both in England and in this country, that one partner is not authorized to bind the partnership by a guaranty of the debt of a third person, without a special authority for that purpose., or one to be implied from the previous course of dealing between the parties, unless the guaranty be afterwards adopted and acted upon by the firm. The guaranty must have reference to the regular course of business transacted by the partnership, and then it will be obligatory upon the company, and this is the principle on which the distinction rests.⁷⁹ The same general rule applies when one partner gives the copartnership as surety for another without the authority or consent of the firm, for this would be pledging the partnership responsibility in a matter entirely unconnected with the partnership business.⁸⁰

Nor can one partner charge the firm by deed, with a debt, even in commercial dealings. It would be inconsistent with technical rules, and contrary to the general policy of the law; for the execution of a deed requires a special authority; and such a power has been deemed by the English courts to be of dangerous tendency, as it would enable one partner to give to a favorite creditor a mortgage or a lien on the real estates of the other partners.⁸¹ But one partner, by the special authority of his copartners under seal, and if in their presence, by parol authority, may execute a deed for them in a transaction in which they were all interested. It amounts, in judgment of law, to an execution of the deed by all the partners, though sealed by one of them only;⁸² and the general doctrine of the English law on this point has been clearly recognized and settled by numerous decisions in our American courts.⁸³

One partner may by deed execute the ordinary release of a debt belonging to the copartnership, and thereby bar the firm of a right which it possessed jointly. This is within the general control of the partnership funds, and within the right which each partner possesses, to collect debts, and receive payment, and to give a discharge. The rule of law and equity is the’ same, and it must be a case of collusion for fraudulent purposes, between the partner and the debtor, that will destroy the effect of the release.⁸⁴ A release by one partner, to a partnership debtor, after the dissolution’ of the partnership, has been held to be a bar of any action at law against the debtor.⁸⁵ So, also, in bankruptcy, one partner may execute a deed, and do any other act requisite in proceedings in bankruptcy, and thereby bind the partnership. This is another exception’ to the general rule, that one partner cannot bind the company by deed.⁸⁶ Nor can one partner bind the firm by a submission to arbitration, even of matters arising out of the business of the firm. The principle is, that there is no implied authority, except so far as it is necessary to carry on the business of the firm.⁸⁷

The acknowledgment of an antecedent debt by a single partner, during the continuance of the partnership, will bind the firm equally with the creation of the debt in the first instance; and it will take the case out of the statute of limitations, if it be a clear and unqualified acknowledgment of the debt. Whether any such acknowledgment, or promise to pay, if made by one partner after the dissolution of the partnership, will bind a firm, or take a case out of the statute, as to the other partners, has been for some time an unsettled, and quite a vexed question, in the books. In Whitcomb v. Whiting,⁸⁸ it was held, that the admission of one joint maker of a note took the case out of the statute as to the other maker, and that decision has been followed in this country.⁸⁹ The doctrine of that case has even been extended to acknowledgments by a partner after the dissolution of the partnership, in relation to antecedent transactions, on the ground, that as to them, the partnership still continued.⁹⁰ But there have been just and necessary qualifications annexed to the general principle; for, after the dissolution of a partnership, the power of the members to bind the firm ceases, and an acknowledgment of a debt will not, of itself, be sufficient, inasmuch as that would, in effect, be keeping the firm in life and activity.⁹¹ To give that acknowledgment any force, the existence of the original partnership debt must be proved or admitted aliunde.⁹² Of late, however, the decision in Whitcomb v. Whiting has been very much questioned in England, and it seems now to he considered as an unsound authority by the court which originally pronounced it.⁹³ And we have the best authority in this country for the conclusion, that the acknowledgment of a debt by a partner, after the dissolution of the partnership, will be of no avail, and will not take the debt out of the statute as to the other partner, on the ground, that the power to create a new right against the partnership, does not exist in any partner after the dissolution of it; and the acknowledgment of a debt barred by the statute of limitations, is not the mere continuation of the original promise, but a new contract springing out of, and supported by, the original consideration. This is the doctrine, not only in Pennsylvania, but in the Supreme Court of the United States;⁹⁴ and the law in England, and in this country, seem equally to be tending to this conclusion.

If, however, in the terms of dissolution of a partnership, one partner be authorized to use the name of the firm in the prosecution of suits, he may bind all by a note for himself and his partners, in a mutter concerning judicial proceedings.⁹⁵ The business and contracts of a partner, distinct from, and independent of, the business of the partnership, are on his own account; and yet it is said, that one partner cannot be permitted to deal on his own private account in any matter which is obviously at variance with the business of the partnership, and that the company would be entitled to claim the benefit of every such contract. The object of this rule is to withdraw from each partner the temptation to bestow more attention, and exercise a sharper sagacity, in respect to his own purchases and sales, than to the concerns of the partnership in the same line of business.⁹⁶ The rule is evidently founded in sound policy; and the same rule is applied to the case of a master of et vessel, charged with a cargo for a foreign market, and in which he has a joint concern.⁹⁷

III. Of the dissolution of partnership.

If a partnership be formed for a single purpose or transaction, it ceases as soon as the business is completed; and nothing can be more natural and reasonable than the rule of the civil law, that a partnership in any business should cease when there was an end put to the business itself.⁹⁸ If the partnership be for a definite period, it terminates of course when the period arrives. But in that case, and ii the case in which the period of its duration is not fixed, it may terminate from various causes, which I shall now endeavor to explain, as well as trace the consequences of the dissolution.

A partnership may be dissolved by the voluntary act of the parties, or one of them, and by the death, insanity, or bankruptcy of either, and by judicial decree, or by such a change in the condition of one of the parties as disables him to perform his part of the duty. It may also be dissolved by operation of law, by reason of war between the governments to which the partners respectively belong, so as to render the business carried on by the association impracticable and unlawful.⁹⁹

(1.) Dissolution by the voluntary act of either partner.

It is an established principle in the law of partnership, that if it be without any definite period, any partner may withdraw at a moment’s notice, when he pleases, and dissolve the partnership.¹⁰⁰ The civil law, and the English law, contain the same rule on the subject.¹⁰¹ The existence of engagements with third persons does not prevent the dissolution by the act of the parties, or either of them, though those engagements will not be affected, and the partnership will still continue as to all antecedent concerns, until they are duly adjusted and settled.¹⁰² A reasonable notice of the dissolution might be very advantageous to the company, but it is not requisite; and a partner may, if he pleases, in a case free from fraud. choose a very unseasonable moment for the exercise of his right. A sense of common interest is deemed a sufficient security against the abuse of the discretion.¹⁰³ Though the partnership be constituted by deed, a notice in the gazette by one partner, is evidence of a dissolution of the partnership as against the party to the notice, even if the partnership articles require a dissolution by deed.¹⁰⁴

But if the parties have formed a partnership by articles, for a definite period, in that case it is said, that it cannot be dissolved without mutual consent before the period arrives.¹⁰⁵ This is the assumed principle of law by Lord Eldon in Peacock v. Peacock,¹⁰⁶ and in Crawshay v. Maule;¹⁰⁷ and yet in Marquand v. The New York Man. Company,¹⁰⁸ it was held, that the voluntary assignment by one partner, of all his interest in the concern, dissolved the partnership, though it was stipulated iii the articles, that the partnership was to continue until two of the partners should demand a dissolution, and the other partners wished the business to be continued, notwithstanding the assignment. And in Skinner v. Dayton,¹⁰⁹ it was held by one of the judges,¹¹⁰ that there was no such thing as an indissoluble partnership. It was revocable in its own nature, and each party might, by giving due notice, dissolve the partnership as to all future capacity of the firm to bind him by contract; and he had the same legal power, even though the parties had covenanted with each other that the partner ship should continue for such a period of time. The only consequence of such a revocation of the partnership power in the intermediate time, would be, that the partner would subject himself to a claim of damages for a breach of the covenant. Such a power would-seem to be implied in the capacity of a partner, to interfere and dissent from a purerchase or contract about to be made by his associates; and the commentators on the Institutes lay down the principle as drawn from the civil law, that each partner has a power to dissolve the conection at any time, notwithstanding any convention to the contrary, and that the power results from the nature of the association. They hold every such convention null, and that it is for the public interest that no partner should be obliged to continue in such a partnership against his will, inasmuch as the community of goods in such a case engenders discord and litigation.¹¹¹

The marriage of a feme sole partner would like wise operate as a dissolution of the partnership, because her capacity to act ceases, and she becomes subjected to the control of her husband, and it is not in the power of any one partner to introduce, by his own act, the agency of a new partner into the firm.

(2.) By the death of a partner.

The death of either party is, ipso facto, a dissolution of the partnership, however numerous the association may be. The personal qualities of each partner enter into the consideration of the contract, and the survivors ought not to be held bound without a new assent, when, perhaps, the abilities and skill, or character and credit of the deceased partner, were the inducements to the formation of the connection.¹¹² Pothier says, that the representatives of the deceased partner are bound by new contracts made in the name of the partnership, by the survivor, until notice be given of the death, or it be presumed to have been received.¹¹³ But Lord Eldon was of opinion that the death of the partner did, of itself, work the dissolution; and he was not prepared to say, notwithstanding all he had read on the subject, that a deceased partner’s estate became liable to the debts of the continuing partners, for want of notice of such dissolution.¹¹⁴ In the Roman law, and in the commentaries of the civilians, every subject connected with the doctrine of partnership is considered with admirable sagacity and precision; but, in this instance, the rule was carried so far, that even a stipulation that, in the case of the death of either partner, the heir of the deceased should be admitted into the partnership, was declared void.¹¹⁵ The provision in the Roman law was followed by Argou, in his institutes of the French law.¹¹⁶ Pothier was of opinion, however, that the civil law abounded in too much refinement on this point, and that if there be a provision in the original articles of partnership, for the continuance of the rights of partnership in the representatives of the deceased, it would be valid.¹¹⁷ His opinion has been followed in the Code Napoleon;¹¹⁸ and in the English law, such a provision in the articles of partnership for the benefit of the representatives of a deceased partner, is not questioned; and it was expressly sustained by Lord Talbot.¹¹⁹

A community of interest still exists between the survivor and the representatives of the deceased partner; and those representatives have a right to insist on the application of the joint property to the payment of the joint debts, and a due distribution of the surplus. So long as those objects remain to be accomplished, the partnership may be considered as having a limited continuance. If the survivor, does not account in a reasonable time, a Court of Chancery will grant an injunction to restrain him from acting, and appoint a receiver, and direct the accounts to be taken.¹²⁰ If the surviving partner be insolvent, the effects in the hands of the representatives of the deceased partner are liable, in equity, for the partnership debts; and it is no objection to the claim that the creditor hag not used due diligence in prosecuting the surviving partner, before his insolvency; for the debt is joint and several, and equally a charge upon the assets of the deceased partner, and against the person and estate of the survivor.¹²¹

(3.) By the insanity of a partner.

Insanity does not work a dissolution of partnership, ipso facto. It depends upon circumstances, under the sound discretion of the Court of Chancery. But if the lunacy be confirmed and duly ascertained, it may now be laid down as a general rule, notwithstanding the decision of Lord Talbot to the contrary, that, as partners are respectively to contribute skill and industry, as well as capital, to the business of the concern, the inability of a partner by reason of lunacy, is a sound and just cause for the interference of the Court of Chancery to dissolve the partnership, and have the accounts taken, and the property duly applied.¹²²

(4.) By bankruptcy of a partner.

Bankruptcy, either of the whole partnership, or of an individual member, dissolves a partnership; and the assignees become, as to the interest of the bankrupt partner, tenants in common with the solvent partners, subject to all the rights of the other partners; and a community of interest exists between them, until the affairs of the company are settled. The dissolution of the partnership follows necessarily, under those statutes of bankruptcy, which avoid all the acts of the bankrupt from the day of his bankruptcy, and from the necessity of the thing, as all the property of the bankrupt. is vested in his assignees, who cannot carry on the trade.¹²³ A voluntary and bona fide assignment by a partner of all his interest in the partnership stock, has the same effect, and dissolves the partnership.¹²⁴ The dissolution takes place, and the joint tenancy is severed, from the time that the partner, against whom the commission issues, is adjudged a bankrupt, and the dissolution relates back to the act of bankruptcy. The bankruptcy operates to prevent the solvent partner from dealing with the partnership property as if the partnership continued; but, in respect to past transactions, he has a lien on the joint funds for the purpose of duly applying them in liquidation and payment of the partnership debts, and is entitled to retain them until the partnership accounts be taken.¹²⁵ If all the interest of a partner be seized and sold on execution, that fact will likewise terminate the partnership, because all his share of the joint estate is transferred, by act of law, to the vendee of the sheriff, who becomes a tenant in common with the solvent partners. I have not met with any adjudication upon the point in the Engligh law, though it is frequently assumed;¹²⁶ but it. follows, as a necessary consequence, from the sale of his interest, and it is equivalent in that respect to a voluntary assignment. It was a rule of the civil law, that the partnership was dissolved by the insolvency of one of the members, and an assignment of his property to his creditors, or by a compulsory sale of them by judicial process on behalf of his creditors.¹²⁷

(5.) By judicial decree.

We have seen that the partnership may be dissolved by the decree of the Court of Chancery, in the case of insanity. It may also be dissolved at the instance of a member, and against the consent of the rest, when the business for which it was created is found to he impracticable, and the property invested liable to be wasted and lost.¹²⁸ It may be dissolved when the whole scheme of the association is found to be visionary, or founded upon erroneous principles.¹²⁹ So, if the conduct of a partner be such as renders it impracticable to carry on the business, or there be a gross abuse of good faith between the parties, the Court of Chancery, on the complaint of a partner, may, in its discretion, dissolve the association,¹³⁰ notwithstanding the other members object to it. But the court will require a strong case to be made out, before it will dissolve a partnership, and decree a sale of the whole concern. It may restrain a single partner from doing improper acts in future; but the parties, as in another kind of partnership, enter into it for better and worse, and the court has no jurisdiction to make a separation between them fur trifling causes, as because one of them is less good tempered or accommodating than the other. The conduct must amount to an exclusion of one partner from his proper agency in the house, or be such as renders it impossible to carry on the business upon the terms stipulated.¹³¹ A breach of covenants in articles which is important in its consequences, or when there has been a studied and continued inattention to a covenant, and to the application of the associates to observe it. will be sufficient to authorize the court to interfere by in junction to restrain the breach of the covenant, or, under circumstances, to dissolve the partnership.¹³² The French law also allowed of a dissolution within the stipulated period, if one of the parties was of such bad temper that the other could not reasonably live with him, or if his conduct was so irregular as to cause great injury to the society.¹³³ A mere temptation to abuse partnership property is not sufficient to induce the court to interfere by injunction;¹³⁴ but when a partner acts with gross impropriety or folly, and there is a strong probability that the safety of the firm, and the rights of creditors, depend upon the interference of Chancery, it forms a proper case for the protection of that jurisdiction to be thrown over the conceru.¹³⁵

In some instances, chancery will restrain a partner from an unseasonable dissolution of the connection. and on the same principle that it will interfere to stay waste, and prevent an irreparable mischief; and such a power was assumed by. Lord Apsley in 1771, without any question being made as to the fitness of the exercise of it.¹³⁶ In the civil law it was held by the civilians to be a clear point, that an action might be instituted by, or on behalf of, the partnership, if a partner, in a case in which no provision was made by the articles, should undertake to dissolve the partnership at an unseasonable moment; and they went on the ground, that the good of the association ought to control the convenience of any individual member.¹³⁷ But such a power, acting upon the strict legal right of a party, is extremely difficult to define, and I should think rather hazardous and embarrassing in its exercise.

(6.) By the inability of the parties to act.

Pothier says, that if a partnership had been contracted between two persons, founded on the contribution of capital by the one, and of personal labor and skill by the other, and the latter should become disabled by the palsy to afford either the labor or skill, the partnership would be dissolved, because the object of it could not be fulfilled.¹³⁸ This conclusion would be extremely reasonable, for the case would be analogous in principle to that of insanity, and equally proper for equitable relief.

If the partners were subjects of different governments, a war between the two governments would at once interrupt, and render unlawful, all trading and commercial intercourse, and, by necessary consequence, work a dissolution of all commercial partnerships existing between the subjects of the two nations residing within their respective dominions. A state of war creates disabilities, imposes restraints, and exacts duties, altogether inconsistent with the continuance of every such relation. This subject, has been largely discussed, and the doctrine explicitly settled and declared by the courts of justice in this state.¹³⁹

(7.) Consequences of the dissolution.

When a partnership is actually ended by death, notice, or other effectual mode, no person can make use of the joint property in the way of trade, or inconsistently with the purpose of settling the affairs of the partnership, and winding up the concern. The power of one partner to bind the firm, ceases immediately on its dissolution, and the partners, from that time, become distinct persons, and tenants in common of the joint stock. One partner cannot endorse bills and notes previously given to the firm, so as to bind it. If the paper was even endorsed before the dissolution, and not put into circulation until afterwards, all the partners must unite in putting it into circulation, in order to bind them.¹⁴⁰ But until the purpose of finishing the prior concerns be accomplished, the partnership, as we have already seen, may be said to continue; and if the object be in danger of being defeated by the unjustifiable acts or conduct of any of the partners, a court of equity will interfere, and appoint a manager or receiver to conduct and settle the business.¹⁴¹ On the dissolution by death, the surviving partner settles the affairs of the concern, and the Court of Chancery will not arrest the business from him, and appoint a receiver, unless confidence be destroyed by his mismanagement or improper conduct.¹⁴²

Each party may insist on a sale of the joint stock; and when a court of equity winds up the concerns of a partnership, it is done by a sale of the property, and a conversion of it into money. If, however, before a sale, the partner in possession of the capital continues the trade with the joint property, he will be bound to account with the other partner for the profits of the trade, subject to just allowances.¹⁴³ The joint creditors have the primary claim upon the joint fund, for as the partnership property has been acquired by means of partnership debts, those. debts have, in equity, a priority of claim to be discharged, and the partnership debts are to be settled before any division of the funds takes place. This claim of the joint creditors is not such a lien upon the property, but that a bona fide alienation to a purchaser for valuable consideration, by the partners, or either of them, before judgment and execution, will be held valid. These are just and obvious principles of equity, on which we need not enlarge, and they have been recognized and settled by a series of English and American decisions.¹⁴⁴

To render the dissolution safe and effectual, there must be due notice given of it to the world, and it is held, that a firm may be bound, after the dissolution of a partnership, by a contract made by one partner in the usual course of business, and in the name of the firm, with a person who contracted on the faith of the partnership, and had notice of the dissolution. The principle on which this responsibility proceeds, is the negligence of the partners in leaving the world in ignorance of the fact of the dissolution, and leaving strangers to conclude that the partnership continued, and to bestow faith and confidence to the partnership name in consequence of that belief.

What shall he sufficient constructive or implied notice of the dissolution has been a vexed question in the books. A notice in one of the public and regular newspapers of the city or county where the partnership business was carried on, is the usual mode of giving the information, and may, in ordinary cases, be quite sufficient. But even the sufficiency of that notice might be questioned in many cases, unless it was shown, that the party entitled to notice was in the habit of reading the paper.¹⁴⁵ Public notice given in some such reasonable way, would not be actual and express notice, but it would be good presumptive evidence for a jury to conclude all persons who have not had any previous dealings with the firm. As to persons who have been previously in the habit of dealing with the the firm, it is requisite that actual notice be brought home to the creditor, or, at least, that it be given under circumstances from which actual notice may be inferred. If the facts are all found or ascertained, the reasonableness of notice may be a question of law for the court, and so it was held its Mowati v. Howland;¹⁴⁶ but generally it will be a mixed question of law and fact to be submitted to a jury under the direction of the court, whether notice in the particular case, under all the circumstances, has been sufficient to justify the inference of actual or constructive knowledge of the fact of the dissolution.¹⁴⁷ The weight of authority seems now to be, that notice in one of the usual advertising gazettes of the place where the business was carried on, and published in a fair and usual manner, is not presumptive evidence merely, but conclusive evidence of the fact as to all persons who have not been previous dealers with the partnership. Nor is notice, in fact, requisite, when a partnership is dissolved by operation of law. A declaration of war puts an end to the continuance of a commercial partnership, between subjects of the two countries, having each his domicile in his own country; and such an official solemn act of government is notice to all the world of the most authentic and monitory kind, and supersedes the necessity of any other.¹⁴⁸

When a single partner retires from the firm, the same notice is requisite to protect from continued responsibility; and even if due notice be given, yet if the retiring partner willingly suffers his name to continue in the firm, he will still be holden.¹⁴⁹ But if the use of the name of the former firm be continued without his authority, and the retiring partner had given due notice of the dissolution of the connection, he is not responsible for the use of his name without his consent or authority, and without any act to warrant it; and he is not bound to take legal measures to have the use of the former name of the firm discontinued. Persons must inquire, and know, at their peril, who are truly designated by the firm.¹⁵⁰ A dormant partner may withdraw without giving public notice of the dissolution of the partnership, for being unknown as a partner, the firm was not trusted on his count, and he is chargeable only for debts contracted during the time he was actually a partner.¹⁵¹ In the case of an infant partner, his acts and contracts are of course voidable; but if, on arriving at full age, the infant does not disaffirm the partnership, and give notice of it to those with whom the partnership have had dealings, he will be responsible for subsequent debts contracted on the credit of the partnership. The ground of the rule is, that the infant acted as partner during his infancy, and when he comes of age he neglects to inform the world that he is not a partner, and suffers it to deal under mistake and delusion.¹⁵²

Having thus far collected and reviewed the general principles which constitute the law of partnership, and followed those principles into their practical details, the plan of these lectures will not permit me to go more minutely into the subject, or to consider the legal and equitable remedies which exist between partners, and between them and third persons, in relation to the various rights and duties which belong to the association. The questions arising upon those remedies, and particularly in respect to the settlement of the partnership estate, in the various cases of dissolution, and especially of dissolution by bankruptcy, are subtle and numerous. The decrees in equity tinder this head abound with minute and refined distinctions, and they form a comprehensive and very complicated part, of this branch of commercial law.¹⁵³