firm, or from collecting or receiving the copartnership debts or other moneys coming to said firm. 4. For such other or further relief as may be just, with costs of this action.80 § 2651. Compensation allowed. Where the partnership has been carried on some time after the dissolution by death, and such continuance has proved beneficial, the surviving partner may be allowed compensation for his services, to be deducted from the profits.81 § 2652. Credit allowed. A surviving partner who administers upon the partnership affairs may be allowed a credit on his inventory for a debt due by the deceased partner, and for a debt due by himself to the firm, at the same time, both debtors being insolvent.82 § 2653. Dissolution by death. The partnership is dissolved by death.83 The death of a partner is not a revocation of the agency.84 § 2654. Rights of survivor. When a partnership is dissolved by the death of one of its members, the surviving partner is to wind up the affairs of the partnership, pay its debts out of its assets, and divide the residue among those entitled to it.85 He has the exclusive right of possession, and absolute power of disposing of the assets.8 He may transfer the title to a chose in action of the firm; and after such transfer the remedy 86 80 Under the California statute, a surviving partner has the absolute right to settle up the affairs of the copartnership, subject always to judicial inquiry; but the executor or administrator of the deceased partner may maintain against the surviving partner any action which the decedent could have maintained. Code Civ. Pro., § 1585. 81 Griggs v. Clark, 23 Cal. 427. 82 Crow v. Weidner, 36 Mo. 412. 83 Scholefield v. Eichelberger, 7 Pet. 586; Burwell v. Mandeville, 2 How. 560; Schmidt v. Archer, 113 Ind. 365; Hoard v. Clum, 31 Minn. 186. 84 Bank of N. Y. v. Vanderhorst, 32 N. Y. 553. 85 Gleason v. White, 34 Cal. 258; Loeschigk v. Addison, 19 Abb. Pr. 169; and see Goldsmith v. Eichold, 94 Ala. 116; 33 Am. St. Rep. 97; King v. Leighton, 100 N. Y. 386. 86 Cal. Code Civ. Pro., § 1585; Allen v. Hill, 16 Cal. 113. must be prosecuted in the name of the real party in interest.87 In Louisiana, on the death of a partner, his interest in the assets of the concern become vested in his heirs-at-law, and the surviving partners can only acquire that interest by transfer and assignment from the heirs, and thereby acquire the right to sue for a debt in their own name." The right of a surviving partner to administer the partnership effects is not an absolute right, but depends upon the consent of the heirs.89 88 § 2654a. Accounting between partners - pleading. It is the duty of a partner to account to his copartner for all funds arising from the sale of partnership property, which come into his hands.90 In an action for an accounting between partners the complaint need not specify the particular transactions as to which the accounting will be required.91 Allegations of a partnership between the complainant and defendant, which has been dissolved, but whose accounts have never been settled, and of the possession of the books and papers thereof by the defendant, and his refusal to allow the complainant to inspect the same, are sufficient to sustain a bill in equity for an accounting, though the complainant has waived his right to a discovery.92 When in a suit for an accounting of partnership affairs an employee is improperly sued as a partner, with the plaintiff and another defendant, and a nonsuit granted as to the employee, it is proper to proceed with the accounting between the plaintiff and the remaining defendant, between whom a partnership is shown to exist, and a nonsuit may be refused as to such defendant. The issue tendered as to partnership between the three persons includes an issue as to partnership between the remaining two which may be tried without amendment.93 § 2654b. Dissolution of partnership — pleading- multifariousness. A bill in equity, for dissolution and winding up of the affairs of a partnership, which alleges that the defendant partner willfully neglects to comply with the partnership agreement; 87 Roys v. Vilas, 18 Wis. 169; Durant v. Pierson, 124 N. Y. 444; 21 Am. St. Rep. 686: Berson v. Ewing, 84 Cal. 89. 88 Skipworth v. Lea, 16 La. Ann. 247. 89 McKowen v. McGuire, 15 La. Ann. 637. 90 Langell v. Langell, 17 Oreg. 220. 91 Teschemacher v. Lenz, 31 N. Y. Supp. 543. 92 Congdon v. Aylsworth, 18 Atl. Rep. 247; 17 R. I. 281. 93 Chalmers v. Chalmers, 81 Cal. 81. that the business is being conducted at a loss, and that the complainants were induced to enter into the agreement through the defendant's misrepresentations, is not multifarious. Where the complaint alleges an equitable cause of action for the dissolution of a partnership and the appointment of a receiver, and the evidence presents only a cause of action for damages for a breach of a contract for services, the court can not give judgment for damages, or allow the complaint to be amended, but must dismiss the action.95 94 Rosenstein v. Burns, 41 Fed. Rep. 841; see Ketchum v. Lewis, 19 N. Y. Supp. 452. 95 Dalton v. Vanderveer, 31 Abb. N. C. 430. The plaintiff complains, and alleges: I. That plaintiff and defendant intermarried at ..... on or 18.., and ever since have been, and now are, husband and wife. II. That the plaintiff is, and has been, a resident of the state for the period of .. .. months im of ... 18... III. And plaintiff, on her information and belief, alleges that the defendant did, on the ... ... day of commit adultery with one [name the place, and describe the house]. at IV. Plaintiff further alleges, on her information and belief, that defendant, on divers days and times between said lastmentioned day and the commencement of this action, has committed adultery with the said and cohabiting with the said in the house above mentioned. and is now living at the place and V. Plaintiff further alleges that each and all of said acts of adultery were committed without the consent, connivance, procurement, or previous knowledge of plaintiff, and that she has not lived or cohabited with defendant since she became cognizant of the commission by the defendant of the several acts of adultery complained of. VI. Plaintiff further alleges that the defendant is the owner and possessed of the following-described real and personal property [particularly describe it, and state its value], all of which has been acquired by him since their said marriage. VII. Plaintiff alleges that the rents, issues, and profits of said real property are of the monthly value of about. dollars, in United States gold coin. VIII. Plaintiff further alleges that there are now living of children. [State the issue of their said marriage their sex, names, and ages.] IX. Plaintiff further alleges that she is in indigent circumstances, and wholly dependent upon her own labor for her support [or that she is in ill health, or too aged to earn her livelihood, and is dependent on the charity of her friends for support]. Wherefore plaintiff demands judgment: 1. That the bonds of matrimony between herself and the defendant be dissolved, and that the custody of the said minor children be awarded to the plaintiff. 2. That such portion of the common property be allowed and set apart to plaintiff as shall be equitable and just, and that the defendant be enjoined and restrained from disposing of or in any manner incumbering the property herein described. 3. That the defendant may be required to pay a reasonable sum into court to defray the expenses of this action, and for counsel fees and that he pay to plaintiff such further sum for alimony as to this court may seem just, for her support during the pendency of this action. Plaintiff prays for general relief.1 § 2656. Allegation of adulterous intercourse. [TITLE.] Form No. 614. ... .... day of 18.., has That the defendant has committed adultery with one A. B., and ever since the been living in adulterous intercourse with him [her], at the house known as on street, in § 2657. Allegation where name is unknown. [TITLE.] That on the house known as city of the defendant committed adultery with a man [or a woman] whose name is unknown to the plaintiff.2 1 In California divorces may be granted for any of the following causes: 1. Adultery; 2. Extreme cruelty; 3. Willful desertion; 4. Willful neglect; 5. Habitual intemperance; 6. Conviction of felony. Civil Code, § 92. 2 This allegation is sustained by Germond v. Germond, 6 Johns. Ch. 347; 10 Am. Dec. 335. The place should be distinctly stated. |
