remailing partner acquires the same dominion as if it had ever been his own separate property.62 Where one partner sells out his interest in the partnership, it works dissolution to the same. 63 The introduction of new members into a firm works dissolution of the pre-existing copartnership, except for the purpose of collecting the assets and paying the debts of the concern. 64 2641. Upon notice of expiration of term of copartnership. [TITLE.] Form No. 609. I. [Allege partnership as in preceding forms.] II. That on the ........ day of 18.., the defendant [or the plaintiff], pursuant to the provision of said agreement, gave to the [defendant or plaintiff] a written notice of his intention to dissolve said agreement, a copy of which notice, and also of said agreement is hereto annexed. [DEMAND OF JUDGMENT.] 2642. Actual notice. Where the partnership agreement provides for a dissolution upon notice, any notice is sufficient which clearly fulfills the intention of the agreement. § 2643. Mutual consent. When a partnership is dissolved by mutual consent, a court will assume control of its business and appoint a receiver only when it appears necessary to protect the interest of the parties, and not as a matter of course.65 In New York, the dissolution of a limited partnership by filing a notice with the county clerk, and by publication for four weeks,66 does not become operative until the complete performance of both these acts.6 67 Such notice is necessary to exonerate 62 Dimon v. Hazard, 32 N. Y. 65. 63 Bradley v. Harkness, 26 Cal. 69. A sale by one partner of all the property used by the firm in carrying on its business operates as a dissolution. Patterson v. Hare, 38 N. Y. Supp. 565. But a mining partnership is not necessarily dissolved by the retirement of one of the partners, and a sale of his interest to a third person, even without the consent of the remaining partner, nor is such partnership dissolved by the bankruptcy or death of one of the partners. Thomas v. Hurst, 73 Fed. Rep. 372; Kahn v. Smelting Co., 102 U. S. 641. 64 Mudd v. Bast, 34 Mo. 465. 65 Cox v. Peters. 2 Beasley, 39. 661 Rev. Stat. 767, § 24. 67 Fanshawe v. Lane, 16 Abb. Pr. 71. the members of a firm from liability on a promissory note made in its name after dissolution.68 When notice of change of firm's name is relied on to exonerate retiring partner, such change must show that he has retired from the business.69 § 2644. Offer to dissolve. An allegation by one partner, contained in a pleading, of his desire to dissolve, is not equivalent to an acceptance of an offer to dissolve made by the other party a month previous.70 § 2645. When dissolution may be obtained. A partnership that has no limit in respect to time may be dissolved by either party at will.71 Yet where parties have agreed to enter into such a partnership, the refusal of one of them to enter is a good cause of action to the other.72 A provision in articles of copartnership describing a definite period for its continuance, is sufficient, without any prohibition of an earlier dissolution, to prevent either party from dissolving it at will.78 § 2646. On the ground of bankruptcy of partner. [TITLE.] Form No. 610. The plaintiff complains, and alleges: I. [Allege partnership as before.] 18.., at the defendant A. B. was declared a bankrupt by the United States District Court for the district of California, in a certain proceeding therein, wherein C. D. was petitioner and the said A. B. was defendant, and afterwards the defendant E. F. was regularly chosen as assignee of said A. B. and gave bond and qualified as such, and by virtue of the assignment so made to said E. F. by said A. B., and of the proceeding in said cause, said E. F. is tenant in common with the plaintiff in the property and assets of said firm. [DEMAND OF JUDGMENT OF DISSOLUTION, AND AN ACCOUNTING, ETC.] 68 City Bank of Brooklyn v. McChesney, 20 N. Y. 240; City Bank of Brooklyn v. Dearborn, id. 244. 09 American Linen Thread Co. v. Wortendyke, 24 N. Y. 550. 70 Bank of New York v. Vanderhorst, 32 N. Y. 553. 71 Chit. on Cont. 208; see Fletcher v. Reed, 131 Mass. 312. 72 Skinner v. Tinker, 34 Barb. 333. 78 Smith v. Mulock, 1 Abb. Pr. (N. S.) 374. 74 § 2647. Bankruptcy. A decree of bankruptcy against a member of a firm operates as a dissolution of the partnership, and the assignee becomes tenant in common with the solvent partner. The joint property remains in the hands of the solvent partner clothed with a trust. He can enter into no new partnership engagement, but his whole authority is limited to settling and closing the partnership concerns. And ordinarily the assignee has no right to interfere with the administration of the effects of the firm.76 § 2648. On the grounds of misappropriation of funds. [TITLE.] Form No. 611. The plaintiff complains, and alleges: I. [Allege partnership as before.] II. That since the commencement of said partnership, the defendant has, from time to time, applied to his own use, from receipts and profits of said business, large sums of money, greatly exceeding the proportion thereof to which he was entitled, to-wit, the sum of .... dollars. III. That the defendant still continues to collect the copartnership debts and appropriate the money to his own use, greatly exceeding the proportion thereof to which he is entitled, to the detriment of the business of said firm, and the injury of the plaintiff. Wherefore the plaintiff demands judgment: 1. That the said copartnership may be dissolved. 2. That a receiver of the property thereof be appointed, with the usual powers. 3. That an account be taken of all the said copartnership dealings and transactions, from the commencement thereof, and of the money received and paid by the plaintiff and defendant respectively in relation thereto. 4. That the defendant be restrained by injunction from interfering with the debts or moneys or property or effects of said partnership. 5. That the property of the firm, real and personal, be sold and the copartnership debts and liabilities be paid off, and the 74 Wilkins v. Davis, 15 Bank. Reg. 60; see Eustis v. Bolles, 146 Mass. 413; 4 Am. St. Rep. 327. 753 Kent's Com. 59: Story on Part., §§ 1, 328, 341, 407. 76 Matter of Norcross, 1 N. Y. Leg. Obs. 100. surplus, if any, divided between the plaintiff and defendant, according to their respective interest. 6. And for such other and further relief as may be just, with the costs of this action. § 2649. False entry in books. Where one partner has the management of the partnership affairs, and makes false entries in the books, and defrauds his copartner of a portion of the partnership receipts, and retains the same to his own use, the partner defrauded is entitled to a dissolution and an accounting." The taking of an account follows dissolution as a matter of course.78 If in such case there has been an accounting between the partners, and the partner defrauded does not discover the fraud until after the accounting, he may sue for an accounting and dissolution, and on the trial may surcharge and falsify the account, without demanding a reaccounting prior to the commencement of the action.79 § 2650. By administrator, for dissolution of copartnership, on the ground of death of partner. [TITLE.] Form No. 612. The plaintiff complains, and alleges: day of one A. B. entered into partnership with the defendant, under an agreement of which the following is a copy [copy agreement]. II. That the said copartnership business was entered upon pursuant to said agreement, and continued to be carried on under and pursuant to the same up to the time of the death of the said A. B. III. That on the .. day of the said A. B. died. 18.., at IV. That at the time of the death of the said A. B. there was on hand partnership assets to the amount or value of about dollars, as follows [specify personal property and its value; real property, describing it and its value, and other property, as book accounts, etc., and their value]. V. Allege appointment of plaintiff as executor or as administrator, as in forms Nos. 89, 90. 77 Cottle v. Leitch, 35 Cal. 434. 78 Id. VI. That ever since the death of said A. B. the said defendant has continued in the possession of the said real and personal property, and to manage and carry on said business, and dispose of said property, and to collect the debts and things in action, and to pay debts and liabilities of said firm out of the avails thereof; and that he has so collected large sums, the amount of which the plaintiff does not know and can not ascertain. VII. That the defendant has not paid over to the plaintiff as administrator of the estate of said A. B., any money or other proceeds of said copartnership since the death of said A. B., nor has he assigned, transferred, or delivered over to said plaintiff, as administrator, any of the assets, securities, or property of said copartnership. VIII. That the defendant is insolvent, and is unable to give any security for payment to the plaintiff as representative of said A. B. for the value of the interest of said A. B. in said copartnership. IX. That the plaintiff has requested of said defendant a statement and account of said copartnership transactions, which the defendant refused to give. Wherefore, the plaintiff demands: ' 1. That an account may be taken of all the said copartnership dealings and transactions, from the time of the commencement thereof to the time of the dissolution by the death of said A. B., and of the moneys received and paid by the said partners respectively in regard thereto, and that the defendant account for all dealings with and transactions in regard to the property, assets, and effects of said firm since its dissolution by the death of said A. B., and the property sold or disposed of by him, either as surviving partner or otherwise, and of the moneys collected and received and paid out by him on account thereof. 2. That the defendant may be adjudged to pay the plaintiff, as administrator as aforesaid, the residue which shall appear to be due to the estate of said A. B., after payment of all the debts of the firm. 3. That a receiver be appointed, with the usual powers and duties, and under the usual directions; and that the defendant may be restrained by order of this court from disposing of or in any manner interfering with the property and effects of said |
