Bruce v. Ross

Simon, J. delivered the opinion of the court. The object of this action is the dissolution of the partnership heretofore existing between the plaintiff and the defendant. Plaintiff represents that on the 17th of January, 1838, he and the defendant agreed to form a special co-partnership for the purpose of carrying on the business of baking ship biscuit, crackers, &c., and other articles in that line ; and signed and executed a written agreement to that effect. That accordingly a building and necessary machinery were procured and workmen engaged, &e. He further avers that by the 4th article of the agreement, it was declared that a regular set of books of account should be kept for the transactions of the firm; to be settled up monthly, and the profits equally divided. That by the 6th article, it \yas declared that neither party should be allowed to contract debts or incur liabilities. That by the 8th article, it was provided that the partnership should continue for five years, unless the parties should mutually agree to dissolve it; and that if during that time, either party should violate arjy of said articles, the other partner might dissolve the partnership, He also alleges that the defendant has violated the 4th and 6th articles by refusing to permit books to be kept and settlements being made monthly, &c.; and also by contracting debts contrary to the will anil consent of the petitioner ; that he has also violated the 7th article; and that as it now becomes necessary to liquidate the partnership, it is proper that the books be sequestered, in order to enable the court to come to a final and equitable adjustment of the rights of the parties. He prays that the partnership be dissolved, that a division and settlement of the concern may be ordered, and that in the mean time the books be sequestered. To this petition, the defendant filed a long and explanatory answer, in which, after denying his having violated any of the [343] articles of the co-partnership, and alleging that he had complied with the same with scrupulous fidelity, he gives- a detailed statement of the general affairs arid transactions of the partnership, reviews at length all the circumstances relative to its conduct and administration during its existence, and explains the object and purpose of his private dealings and transactions. He further avers that the plaintiff has violated his duty and neglected the business of -the firm, expresses his willingness that said plaintiff should withdraw from the partnership and leave him, defendant, to pursue the business on his own áctíount, insists however on objecting to the dissolution of the' partnership arid to the sale of the effects and property belonging thereto, and concludes by propounding interrogatories to the plaintiff, and praying a decree of the court for general and special damages. 1 A few days after the institution of this suit, John Bruce intervened for the purpose of claiming the return of the patent baking machinery which he had hired to the partnership, in the event of its termination; on the grounds that by the articles of agreement between him and the partners, and owing to the circumstances existing between' them, said machinery could no' íonger bé’ used by the firm or by either of the partners. The court a qua ordered that the partnership in question he dissolved, that a liquidation' arid settlement of the concerns he subsequently made and proceeded upon, subject to such orders as may hereafter become necessary; and that John Bruce’s machinery be delivered over td him, reserving his right to claim the airidririt of the hire thereof against the partnership. From this judgment, the defendant appealed. It is contended by the appellariit that the plaintiff had a right to dissolve the partnership without resorting to the interposition of a! court of justice, and í>f simply retiring therefrom; that this suit is the result of a combination between plaintiff and intervenor; that by the agreeirient it was the duty of the plaintiff to' hrive kept á regular’ set of books, and to make' [344] monthly settlements of the accounts, which he neglected to . an¿ ^at hag 0n his part violated the articles 0f partnership. Where the eontafn a^elause that the part-nersnip might he dissolved at of the parties, drawing^ from strand the other refuses to eon-sent, it becomes necessary for the complaining to the'court'ífor a dissolution, But in case of violation^ofany of partnership by one partner, the other may partnership, ev-pulationUtoathat effect. In the actual condition of the case, it is very difficult to discover the grounds of complaint of the defendant, against the judgment of the inferior tribunal: the judgment appealed from does not go further than ordering a dissolution of the partnership, and a final liquidation and settlement thereof; and the pleadings show or at least intimate that the defendant himself does not wish the said partnership to continue any longer. He sets up against his partner acts of violation which, he says, he has committed to his prejudice, and appears to rely principally on his claim for damages. Our enquiry, however, must be limited to the question whether the partnership was properly dissolved on sufficient grounds ? The voluminous evidence contained in the record and which we have carefully examined, has convinced us most conclusively that sometime before the institution of this suit, both parties evinced by their conduct, p. respective disposition to withdraw from the partnership; neither of them appeared t0 be willing to continue the business together, and this was the . , ° principal cause of their violating or not complying with their articles of agreement. It is, however, clearly established that tbe defendant has actively violated the fourth article, by preventing the plaintiff from having a free access to the books and ox o making a monthly settlement as provided for in their contract ; . . . . ' and this circumstance alone is sufficient to authorize the plaintiff claim the dissolution of the concern. The articles of agreement do not contain any clause that the partnership might be dissolved at the will of either of the parties, by simply with-drawjng therefrom, as the defendant’s counsel has urged; but as the consent of the other could not be obtained by amicable means, it was necessary to apply to the laws of the country for that purpose. The eighth article of the agreement gives to of the partners the right of dissolving the partnership in case of violation of either of the articles by the other partner, [345] and without this stipulation, such' was their right under the 285Sth article of the La. Code-. where a Eeen ^properly of the inferior _ court, tíon ordered, it ^^by tIlis oourt We think that without the necessity of entering into any detail of the facts and circumstances proven respectively by the parties in support of the grounds of complaint by them set up against each other, the partnership was properly dissolved, and that the judge a quo did not err in ordering the liquidation and settlement of the concerns. Nay,’ the parties -would be placed in a very awkward situation, if, by our judgment we were to revive a partnership which has beeii actually dissolved for at least three years. All that remains now to be done so as to come to a final adjustment of their respective pretensions, is to carry into effect the judgment of dissolution, and to investigate all the matters in controversy between the parties, as arising from their respective claims against each other, or against the partnesrhip, and as resulting from their acts during the existence of the firm. With regard to the intervenor, it does riot appear to us that the lower court erred: his contract with the partners contained a clause from which neither of them had the right of using the machinery for their individual benefit or separate from the concern ; with the exception, however, of- the case of death of either of them, or the withdrawal of one of them from the partnership ; in which cases, the survivor or the one who might choose to continue the business, should have the right of continuing the use of the machinery. It is therefore clear that this partnership having not been dissolved by the death of one of the parties, or by the voluntary withdrawal of one of them from the concern, the condition contemplated by the contract founded on the supposition that the same establishment should remain in the hands of one of the co-partners,-cannot be 'realized, and that the intervenor has ceased to be bound by the stipulation inserted in the said contract for" the reciprocal benefit of the parties ; indeed, from the nature and result of the present controversy, it would be impossible to give effect to and make a proper application of the clause from which one of the [346] partners is to have the use of the machinery after the dissolution of the firm. jt jg therefore ordered, adjudged and decreed that the judgment 0f the Parish Court he affirmed, with Costs.