Gilbert v. Howard Automatic Machine Co.

Hotos, J., after stating the facts: The Court is of opinion that by the contract, set out in full in’the complaint, a partnership was created between the parties as an executed agreement and that the stipulation, in the second clause of said contract, by which the plaintiffs were to erect and construct a machine and make certain advancements, was not in the nature of a condition precedent or concurrent, but an obligation for the breach of which, if not.properly explained, the plaintiffs could be held responsible, either as an item of charge in taking a partnership account or by way of counterclaim to' an action brought by themselves, as the defendants may be advised. This construction, we think, finds support in numerous and well-considered decisions. Hartman v. Wœhr and Stegmuller, 18 N. J. Equity, 383; Pierce & Campbell v. Whitney, 39 Ala., 172; White Lead Co. v. Haus, 73 Iowa, 399; Wadsworth v. Manning el al., 4 Md., 59; Cogswell v. Wilson, 11 Oregon, 371. In the New Jersey ease, supra, it is held: “1. A part of the partners cannot exclude from the partnership one of their number who has failed to pay in part of the amount which he agreed to contribute as his share of the capital ; but if part of his capital has been paid in, accepted and used and the business has been commenced in the name of the firm, he is a partner until the partnership is legally dissolved. 2. A partner excluded from the business of the firm by the illegal acts of his copartners is entitled to an account of profits and to his share of them until the partnership is legally dissolved, and is entitled to' a decree of dissolution on the ground of such illegal exclusion from the business.” • The partnership, then, having been established and being one for a definite purpose and creating an interest in the device itself, could not be terminated at the will of either; and if defendants, without just cause and lawful excuse and in breach of the partnership' agreement as charged in the complaint, have disposed of the device and received therefor a large sum of money, for which they refuse to account, there [315] would be a wrong done plaintiffs, for which, as the facts now appear, an action would lie. Karvick v. Hannaman, 168 U. S., 328; Pearce and another v. Ham, 113 U. S., 585; Bagley v. Smith, 10 N. Y., 489; Dart v. Lainbeer, 107 N. Y., 664; 22 A. and E., p. 205. In this last citation it is said: “A partnership for the accomplishment of certain definite objects, but not expressly specifying any time for its continuance, is not a partnership at will within the meaning of the rule just stated, but is to be regarded as a partnership to continue until its purpose is accomplished or the impracticability thereof is demonstrated.” We are of opinion that the defendants should be required to answer and that-the judgment sustaining the demurrer should be Reversed.