PARTNERSHIP-Powers-Liabilities.
48. Power of superintendent of ditch company.--The superintend- ent or managing agent of such company has no authority to bind the company by a note, given for materials used by the company, unless the authority to give such note is expressly conferred upon him by the company, or may be implied from his acts recognized by the company with full knowledge. Id.
49. Liability of incoming partner does not include contracts and engagements made prior to his entry. Babcock v. Stewart, 11, 447
50. Liability personal to the debtor.-Those who have sold goods or done work on the credit of the original partners and have no lien, have parted with all their interest in the effects, and can look only personally to those with whom they have contracted. Id.
51. The ground of liability of one partner for the acts of the others is that of an implied general partnership agency. Id.
52. Holding out as partner.—If one holds himself out, or know- ingly suffers himself to be held out, as a partner, on the faith of which others trust or enter into a contract with the firm, he is responsible, although not a partner. Kirk v. Hartman, 53. Holder of share not ipso facto liable.
Vice v. Lady Anson, 11, 244
54. Liability of withdrawing partner-Notice-An ex-partner is not liable for new contracts with parties who do not know at time of contracting that he has withdrawn, there being no sufficient evidence that he had ever, while a partner, represented himself as such to the contracting party, or appeared so publicly in that character that it must have been presumed to be known. Carter v. Whalley, 11, 262
55. Evidence to prove partnership liability.—Where a mining com- pany was formed on a capital of £30,000, in 3,000 shares, and 2,000 shares only were actually subscribed for, of which the defendant took 100: Held, that letters subsequently written by him to the directors, requiring them to call a meeting for the purpose of changing a director, were evidence to go to the jury to show that he authorized the direc- tors to proceed in the management of the concern with the smaller amount of capital, so as to render him liable for the price of articles supplied to the mines on the order of the directors. Tredwen v. Bourne,
56. Belief of plaintiff that retiring member was still a partner.—If plaintiff was aware of the previous copartnership, and had no knowl- edge of the dissolution, and was misled by the acts of the retiring partner, and induced to deal with the firm upon the belief that the re- tiring partner was still a member of the firm, it would not be incumbent upon her to show "that she would not have so dealt but for that belief." Hixon v. Pixley, 11, 555
57. Lapse of time as affecting knowledge of dissolution. Id. 58. Continuing liability of partner after conditional notice.-Held, that a partner may by absolute notice save his liability although he still continues a partner; but that this was not an absolute notice in terms, and its effect should have been left to the jury. Vice v. Flem- ing,
PARTNERSHIP--Powers-Liabilities.
59. Agreement to purchase on joint account. Purchase perfected by one. First Nat, Bank v. Bissell,
60. Arrangement between quarry and marble mill-Test of part- nership-Book account for indorsements. Flint v. Eureka Co.,
61. Use of unusual firm name by partner in signing note.-The proper question for the jury is, whether the name used, though inac- curate, substantially describes the firm, or whether it so far varies that the indorser must be taken to have issued the note on his own account, and not in the exercise of his general authority as partner. Faith v. Richmond,
62. Idem-Facts of the case.-So held where a partner in "The Newcastle and Sunderland Wall's End Coal Company" drew a note in the name of "The Newcastle Coal Company," and made it payable at a bank where the first mentioned company had no account. Id. 63. Liability of general partners for trespass of employes. Mc- Knight v. Ratcliff,
11, 364 64. A special partner is not so liable (under limited partnership act); facts not sufficient to change a special into a general partner. Id.
65. Silent dissolution as affecting liability of withdrawing partner.— He is not relieved from liability for work done before, or debts con- tracted after thus silently withdrawing or assigning. Burgan v. Lyell, 11, 287
66. Secret agreement limiting power of partnership, does not affect acts customary to partners, unless the parties dealt with knew of the agreement. Nolan v. Lovelock,
9, 360 67. The majority in interest, and not the majority of persons, has the right of control in the working of claims where all parties can not agree. Dougherty v. Creary, 1, 36; Nolan v. Lovelock, 9, 360 68. The abuse of such right affords grounds for relief in equity. Dougherty v. Creary, 1,36
C. Funds-Assets-Assessments.
69. That legal title to common fund stands in third parties, is of no consequence in a controversy over the distribution of the proceeds of the sale of the property authorized by the general consent. But- terfield v. Beardsley, 11, 495 70. Purchase of coal lands by one partner with partnership funds- Conveyance compelled. Faulds v. Yates, 3,551 71. A dissolution being to the interest of all the parties, costs and counsel fees allowed out of the fund. Von Schmidt v. Huntington, 6, 285 72. All property of a trading concern, whether real or personal, is partnership assets, and is to be so applied. Fereday v. Wightwick,
73. Net profits defined. Binney v. Ince Hall Co., 74. Distribution of profits set apart as continuing capital.—Cir- cumstances considered under which net profits may, at the wish of
PARTNERSHIP-Funds, etc. Continued.
the majority of the shareholders, be applied in repayment of contributed capital, although the deed of settlement seems to contemplate a con- tinuing capital, as in an ordinary partnership; there being, however, no express prohibition in the deed. Id.
75. Lands that are part of common partnership stock have in equity the character of personalty; and the legal title thereto is sub- ordinated to the incidents of partnership funds and accounting. God- frey v. White,
76. Lands as assets. -Partnership lands can not, in Michigan, be distinguished from other assets for purposes of settlement. Id.
77. Sale of partnership property for individual debts can cover only the individual interest of the debtor, which can be determined only by an account of the partnership affairs. Ward's Appeal, 5, 666 78. Real estate, not partnership property. Grubb's Appeal,
3, 416 79. Forfeiture of share—Burden of proof on forfeitor although defendant. Patterson v. Silliman, 11, 327
80. Assessments of mining interests.-The statute of 1865-6, Cali- fornia, in relation to levying assessments against the owners of in- terests in mining claims for the purpose of working the same, applies only to co-partners in the claim, and has no reference to mere owners and shareholders, without the partnership relation. Brundage v. Adams,
81. Idem.-To warrant such assessment, if the partnership relation does not exist, the joint owner must be notified that henceforward he will be deemed a co-partner for the purpose of working the claim, and the service of the notice changes the relationship of the parties, and creates a mining partnership. Id.
82. Distinction between corporate and partnership liability. New York Mine v. First Nat. Bank, 1,453 83. Special partners.--In a suit against two as partners on contract, the question would be whether they were partners in that contract. General partnership is immaterial. Kirk v. Hartman, 11, 450
84. Private arrangement between partners.-The rule that third parties are not affected by private agreement existing between partners without notice thereof, rests upon the custom of merchants alone. Judge v. Braswell, 11, 508 85. Partnership note-Strict partnership by agreement between mining partners. Decker v. Howell, 11, 492 86. Partners may by contract limit their powers inter sese, but such limitation does not bind strangers having no notice thereof. And such limitation and notice must be specially pleaded. Burgan v. Lyell, 11, 287; Manville v. Parks,
E. Mining Distinguished from Other Partnerships. 87. Mining and ordinary partnerships distinguished. Duryea v. Burt, 11, 395; Charles v. Eshelman,
88. Incidents of mining partnerships.-A mining concern differs
PARTNERSHIP-Limited-Special.
from a common partnership in that-1. The shares are assignable. 2. The death or bankruptcy of a holder of shares does not operate as a dissolution although it is in the nature of a trading concern. Fereday v. Wightwick,
to bind each other by dealings on Manville v. Parks,
89. Mining partners have power credit for the working of the mine. 15, 565 90. A mining partnership differs from an ordinary partnership, in certain incidents, to wit: inter alia (1) the sale of his interest by one partner does not dissolve the relation; (2) no one partner can bind the company by note or contract of indebedness in the name of the com- pany. Skillman v. Lachman,
91. A purchaser becomes a partner. Nisbet v. Nash, 11, 531; Taylor v. Castle,
92. No delectus personæ in mining partnerships.-It is well estab- lished that in mining partnerships there is usually no delectus per- sona, and because of this peculiarity the partnership is not dissolved by the death of a partner, nor as a consequence of a sale of an interest by a partner to a stranger. Taylor v. Castle, 11, 484; Charles v. Eshelman, 2, 65
93. The powers of members and managers of mining partnerships are limited to the performance of such acts in the name of the part- nership, as may be necessary to the transaction of the business, or which is usual in like concerns. Charles v. Eshelman,
2, 65 94. No power to bind associates to payment of counsel. Id. 95. Adventurers testing a prospect under an option contract, are partners. Manville v. Parks, 15, 565 96. A mining partnership exists where several parties co-operate to work a mine, and ownership of the mine is not essential. Id.
97. A partnership may be implied from the acts of the parties without express contract. Id.
98. The relation implied by jointly conducting a mining venture, even without partnership agreement. Snyder v. Burnham, 15, 562 99. No right of pre-emption between mining partners. First Nat. Bank v. Bissell,
11, 546 100. Conveyance of entire interest by partner, may be made with- out dissolving the "partnership." Kahn v. Central Co.,
101. Insufficient finding as to partnership.-In a suit to compel an account for the proceeds of a mining claim, a finding by the court that there was no such co-tenancy between the parties in the mine in controversy, as to entitle the plaintiff to an accounting, is a mere legal inference, and not a sufficient finding of fact upon which to base a decree. Id.
102. Payments of debts of deceased partner must be made out of the proceeds of the joint estate, and the individual debts out of the pro- ceeds of the separate estate. In the exercise of equitable jurisdiction in the allowance of claims, county courts are strictly restrained from infringing on this rule. Charles v. Eshelman,
PARTNERSHIP. Continued.
F. Dissolution-Survivorship-Accounting.
103. By the general rule as to dissolution, the partnership may be terminated at a moment's notice by either party. Crawshay v. Maule, 11, 223
104. Death terminates a partnership. Crawshay v. Maule, 11, 223; but see Jones v. Clark, 11, 474
105. Upon final dissolution of trading partnership, the court will order a sale on motion. Crawshay v. Maule,
106. Want of co-operation by partner distinguished from interfer- ence- -Receiver-Dissolution. Roberts v. Eberhardt,
107. Accounting sought by deserting and insolvent adventurers. Rhea v. Vannoy,
108. Limitation of account.-All that abandoning partners could ask, would be an account of the moneys received on the disposition of the land, and for any tolls, rents or profits arising out of the mining or other operations of the adventure. Id.
109. Abandoned partner operating on his own account, can not be called to account by the abandoning partners. Rhea v. Tathem,
110. Lessee taking partner allowed to dissolve at will after account- ing. Burdon v. Barkus.
11,357 111. Desire to part.-The mere desire of one of the co-tenants is sufficient to authorize the courts to grant a dissolution; that is not enough between partners. Bradley v. Harkness,
11, 389 112. Assignment by one partner is no dissolution of a mining part- nership. Duryea v. Burt, 11,395
113. Division of property after dissolution.—Upon the dissolution of a partnership, in which the articles provided that the effects, on dis- solution, were to be equally divided among the partners, the property and effects of the firm belong to the individuals who composed it, as tenants in common; part of the former members of the firm can not dispose of the property of any other member, without his consent. Phillips v. Reeder, 11, 419
114. Idem.-If some of the members of a dissolved partnership dis- pose of the property of one of the partners, without his consent, he may at his option, call on them to account for its value. Id.
115. Rights of retiring partner.-In many cases, if some of the partners, after dissolution, continue the business with the property of the late firm, the retiring partner will be entitled to call on them for a share of the profits, as well as for his capital. Id.
116. Idem-Continued use of retiring partner's effects.-But this principle will not be applied to a case where the chief contribution to the business was personal skill and labor, and a new partnership was formed with strangers, merely because some of the property of the retiring partner was used in the new business, after being sold to the new firm by the continuing partners, without authority. Id.
117. Idem-Accounting to retired partner must be given if his prop- erty has been sold by the remaining partners. Id.
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