Clark v. Truitt

Mr. Justice Craig delivered the opinion of the court: The object of the bill in this case was to enforce the specific performance of that portion of the contract which provided that appellant might purchase one-half interest in the plant and business of the Pontiac Sentinel, and thus compel appellee to admit appellant as a partner in the management of the plant and in conducting its business, including the selection of articles and preparing editorials for the columns of the paper. If appellant were admitted to a partnership in the plant, as was decreed by the circuit court, in the management of the business and conducting of the newspaper appellant’s judgment, ability and personal skill would be required. But, as we understand the authorities, the rule is well established that courts of equity will not, as a general rule, lend their aid to enforce the specific performance of contracts where personal skill and judgment in the control and management of the partnership business are required. Should a court of equity decree the specific performance of a contract providing for a partnership where personal skill, attention and services are required, as would be the case here, the enforcement of a decree in such a case upon an unwilling party would of necessity require the court to manage the partnership, which, of itself, is regarded a sufficient reason for a refusal to grant the relief. Moreover, where a partnership agreed upon is not for a definite time, but is merely at will, specific performance will be refused, for the reason that the partnership could be immediately dissolved, and a court is never required to do a void or useless thing. We have been cited in the argument to a number of authorities bearing on the questions involved, but a reference to a few will be sufficient to sustain the view we are disposed to take in regard to those questions. “Specific performance of a contract to form a partnership, as a general rule, will not be enforced. Where the contract requires a party to give his time, skill, attention or services of any kind, an enforcement of it upon an unwilling party would require the court to manage the partnership, which alone is reason for refusal to grant relief, besides being productive of no benefit to the other party. And this refusal of specific relief is in analogy to the policy of the .law to grant dissolution for hopeless and irreconcilable dissensions.” (Bates on Partnership, sec. 1009.) “If a partnership agreed upon is at will, specific performance will be refused, for the reason that the partnership could be immediately dissolved.” (Ibid, sec. 1011.) “A-n agreement to enter into a partnership, and, as a partner, to use and exercise personal skill and judgment in the control and management of the partnership business, is not enforceable specifically.” Lindley on Partnership, (Rapalje,) p. 795, note 16, citing Buck v. Smith, 29 Mich. 166. “As a general rule, the court will not enforce specific performance of a contract to form and carry on a partnership; and, notwithstanding some early authorities more or less to the contrary, it is clear that the court would- in no case compel performance of a contract to enter into a partnership not for a 'definite term, for it might be dissolved as soon as entered upon, and the interference of the court would thus become simply nugatory.” (Fry on Specific Performance,- — 3d Am. ed. 1884,— .sec. 1512.) In Wollensak v. Briggs, 20 Ill. App. 50, and Doyle v. Bailey, 75 Ill. 418, the same principle is announced. It will be observed that the contract relied upon here contains no provision in regard to the manner in which the business- shall be conducted after the partnership shall be formed, nor is there any provision in regard to the time of its duration. If the contract were in other respects one of which a court of equity might decree specific performance, the fact that no time is provided for the duration of the partnership is fatal. The rule declared by Fry on Specific Performance on the question seems to be well sustained by the authorities. While appellant cannot resort to a court of equity for a specific performance of the contract he is not without remedy. If he has fully complied with the terms of the contract he is entitled to bring an action at law for a breach of the same. On such action he may recover such damages as he has sustained on account of the failure of appellee to comply with the contract. Wilson v. Campbell, 5 Gilm. 383, has been, cited as an authority sustaining the position of appellant. In the decision of that case the court said (p. 402): “While the agreement (to form a partnership) remains executory, if one of them refuses to carry it into effect the only remedy of the other is by an action at law for the violation of the agreement, or by a bill in equity to enforce specifically its performance.” Whether a court of equity would decree the specific performance of a contract to form a partnership was not involved in the case, and what the court may have said on that question cannot be regarded as authority controlling a case where the question was directly involved. We think the judgment of the Appellate Court was correct, and it will be affirmed. Judgment afflrmed_