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§ 336. COMPLAINTS [OR PETITIONS].

FORM No. 696-For the dissolution of a partnership, and for an accounting and receivership.

[Title of court and cause.]

day of

Plaintiff complains of defendant, and for cause of action alleges: 1. That on the 19 plaintiff and defendant formed and entered into a partnership under articles of copartnership, of which the following is a copy: [Here insert copy; or, if preferred, plead and set forth the same as an exhibit.]

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2. That on the day of 19 the plaintiff and defendant commenced to carry on at [here state location], and have ever since continued to carry on said partnership business under said partnership contract at said place.

3. That since the commencement of said partnership business the defendant has from time to time used for his individual use and benefit large sums of money from the receipts and profits of said partnership business, exceeding the proportion thereof to which he was entitled, and has refused, and still refuses, to account with or to the plaintiff for the same, although plaintiff has often requested and demanded of the defendant that such accounting be had.

4. Plaintiff is informed and believes, and upon such information. and belief alleges, that the defendant has received about the sum of $ over and above his just proportion of the copartnership profits; plaintiff further alleges, that the defendant continues to collect the debts due the copartnership, and that he continues to appropriate the money so collected to his individual use.

Wherefore, plaintiff prays judgment against defendant: That said partnership be dissolved; that an accounting be taken of the affairs thereof, and that plaintiff have and recover of the defendant the amount due the plaintiff from the defendant as the same shall be by said accounting determined; that à receiver be appointed to take possession of the property and assets of said partnership, and that said receiver be authorized to sell the property of said partnership, and collect the debts due the same, and out of the money so realized that he pay the expenses of said receivership and the debts of said partnership, and that the residue, if any, be divided between plaintiff and defendant, according to their respective interests, under the agreement aforesaid; and for such other and further relief as to

the court may seem just and equitable, and for plaintiff's costs of suit herein. A. B., Attorney for plaintiff.

[Verification.]

FORM No. 697-For an accounting after dissolution.

[Title of court and cause.]

The plaintiff complains of the defendant, and alleges:

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entered into partnership with the defendant for the purpose of carry

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2. That the plaintiff paid in, as capital to the said business, the sum of $ , and the defendant paid in, as capital, the sum of $ 19 the plaintiff and defendant com

and on the

day of

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menced said business as partners, under the firm name of continued in the same until the day of

19

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3. That at the time last mentioned, by the mutual consent of said partners, the said firm was dissolved.

4. That at such time the defendant agreed with the plaintiff to take the stock on hand at a valuation of $ and also to collect

the debts due said firm, and pay the debts due by the same, and render from time to time to the plaintiff, on demand, full statements of the debts due to and owing by said firm, and the payments made on account thereof, and on a final adjustment to pay over to the plaintiff his full share of the assets of said firm.

5. That the defendant, accordingly, proceeded to take possession of all the assets of said firm, and has collected the debts due to said firm and applied the proceeds to his own use, instead of paying the debts thereof, and distributing any balance coming to the plaintiff.

6. That the plaintiff has frequently requested the defendant to give him a statement of the assets of said firm which came to his hands, and of his proceedings in the premises, but the defendant has neglected and refused to render any such account, or to pay over to the plaintiff any portion of said assets.

Wherefore, the plaintiff prays judgment, that the defendant be compelled to account with him for said assets, and that he be ordered to pay over to the plaintiff any balance found in his hands coming to him, and for such other relief as may be just, together with the costs of this suit. A. B., Attorney for plaintiff.

[Verification.]

FORM No. 698-To restrain late partner from continuing business

[Title of court and cause.]

day of

The plaintiff complains of the defendant, and alleges: 1. That on the 19 the plaintiff and defendant executed under their hands and seals articles of copartnership for the regulation of their business as [state what business],

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2. That on the 19 said partnership was dissolved by mutual consent, the plaintiff buying the defendant's interest in said business and all the stock in trade and good-will thereof, and the defendant in consideration of said purchase agreeing with the plaintiff not to carry on the same business in the same city in competition with the plaintiff.

3. That this plaintiff has duly performed all the conditions of said agreement on his part to be performed, and is engaged in continuing said business at the same place.

4. That the defendant in violation of said agreement has opened a store [or office], and is carrying on the business of therein,

on

Street, in said city, within

blocks of the plaintiff's store [or office], and in competition therewith, and threatens to and will, unless restrained by this court, continue to carry on the same. 5. That the said acts of the defendant in violation of said agreement are a continuing injury to and interference with the plaintiff's business, and prevent its establishment and greatly reduce the plaintiff's profits, and can not be fully compensated in damages.

Wherefore, the plaintiff prays, that the defendant be restrained. by injunction from carrying on or in any wise engaging in said business in said city, and that the plaintiff have his costs of this suit. A. B., Attorney for plaintiff.

[Verification.]

FORM No. 699-By one partner against another, for breach of agreement to pay firm debts.

(In Gillen v. Peters, 39 Kan. 489; 18 Pac. 613.)

[Title of court and cause.]

Now comes J. C. Gillen, plaintiff, and alleges the following facts constituting his cause of action against F. J. Peters; that is to say:

1. Said F. J. Peters and J. C. Gillen, the plaintiff herein, on or about the 1st day of August, 1886, purchased a herd of horses, to wit, 67 head, together, each owning an undivided one-half interest, and

on or about the 3d day of November, 1886, plaintiff and defendant purchased of the Chicago Lumber Company a bill of lumber, amounting in the aggregate to $338.15, for which lumber, purchased as aforesaid, plaintiff and defendant obligated themselves to pay said lumber company upon demand. Plaintiff further alleges, that on the 20th day of November, 1886, he sold to defendant his undivided onehalf interest in the herd of horses, and at the same time, for a valuable consideration, defendant assumed the payment of said lumber bill, and did thereby obligate himself to pay said lumber company all of said indebtedness, which plaintiff and defendant were jointly and severally bound to pay as aforesaid. A copy of said agreement is hereto attached, marked “Exhibit A," and made part of this petition.1

2. Plaintiff further alleges that defendant has wholly neglected and omitted to pay said indebtedness, or any part thereof, and by reason of such neglect and refusal to pay as agreed upon, said plaintiff has been sued by the Chicago Lumber Company; that said claim is now due and unpaid.

Wherefore, plaintiff asks judgment against the defendant in the sum of $342.85, with interest at seven per cent from the 20th day of November, 1886, and costs of this suit.

[Verification.]

A. B., Attorney for plaintiff.

Form of petition in an action on a contract to pay the debts of a partnership: Gillen v. Peters, 39 Kan. 489, 18 Pac. 613.

Form of complaint in an action for an accounting and winding up of a partnership: Tarabino v. Nicoli, 5 Colo. App. 545, 546, 39 Pac. 362.

Form of complaint in an action at law for the breach of an executory contract to form a future copartnership: Hill v. Palmer, 56 Wis. 123, 124, 14 N. W. 20, 43 Am. Rep. 703.

§ 337. ANNOTATIONS.-Partnership and accounting.

1. Non-joinder of parties plaintiff.

2. Interest of single partner.-To what extends.

3. Joint action at law, when not maintainable. 4. General allegations showing purpose to refund. 5, 6. Nominal parties.-Set-off.

1. Non-joinder of parties plaintiff.Where the evidence shows that the plaintiff had a partner who was interested with him in the demands sued upon, and who is not joined as a party to an action, objection is deemed to be waived unless raised in the pleading: Ah Tong

v. Earle Fruit Co., 112 Cal. 679, 682, 45 Pac. 7; Dewey v. Parcells, 137 Cal. 305, 306, 70 Pac. 174. See Williams v. Southern Pacific R. Co., 110 Cal. 457, 42 Pac. 974.

2. Interest of a single partner extends to entire demand in actions upon con

1 A copy of the agreement is annexed to the complaint, the same being merely a contract upon the part of the defendant to pay certain of the firm's debts, including the debt mentioned in the complaint.

tract as well as in tort, and one partner may recover the whole amount due the firm unless the defendant pleads nonjoinder: Williams v. Southern Pacific R. Co., 110 Cal. 457, 460, 42 Pac. 974.

3. A joint action at law can not be maintained against partners after a dissolution of the copartnership: Ross v. Cornell, 45 Cal. 133, 136.

4. General allegations showing the purpose to refund or put the other party in statu quo are sufficient as a preliminary condition. The rule which requires a party to do equity before he is entitled to equity finds its application not in questions of pleading, nor by what the plaintiff offers to do therein, but in the form and frame and the orders and decrees both interlocutory and final, whereby equitable terms are interposed as a condition precedent to equitable relief granted: Dalpine V. Lume (Mo. App.), 122 S. W. 776, 778, (holding that the plaintiff was not re

quired to allege tender of moneys, which beyond dispute were paid to him, as an element in his action for dissolution of partnership and an accounting). See, also, as to the rule, Whelan v. Reilly, 61 Mo. 565; Paquin v. Milliken, 163 Mo. 79, 104, 106, 63 S. W. 417, 1092; Haydon v. St. Louis etc. R. Co., 117 Mo. App. 76, 106, 107, 93 S. W. 833.

5. Nominal parties as parties plaintiff need not be joined in an action by the firm: Phillips v. Pennywit, 1 Ark. 59; Wetherill v. McCloskey, 28 W. Va. 195. A nominal party, although not a necessary party, may be a proper party plaintiff: Phoenix Ins. Co. v. Hamilton, 14 Wall. (U. S.) 504.

6. A set-off against a nominal party is not available unless the same is against all the plaintiffs: Jones v. Howard, 53 Miss. 707; cited in 8 Am. & Eng. Ann. Cases, 367, 370, note to Lasher v. Colton, 225 Ill. 234, 80 N. E. 122.

CHAPTER XCV.

§ 338. Complaints [or petitions]

Agency.

Page

1325

Form No. 700. By a foreign corporation against its agent and

manager, for an accounting...........

1325

Form No. 701. By real estate agent, for commission......

1328

Form No. 702. By real estate agent, for commissions for sale

executed.

....

1329

Form No. 703. Upon special contract to protect agent in his

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Form No. 705. Defense based upon special contract as to com

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