Lapas attēli
PDF
ePub

as his property, any debtor who had notice of this would be bound to make payment to this person alone; and if he paid anybody else, he would be obliged to pay the money over again.

It is frequently provided, that one partner shall take all the property and pay all the debts; but this agreement, though valid between the partners, has no effect upon the rights of third parties against the other partners; for they have a valid claim against all the partners, of which they cannot be divested without their consent.

This consent of the creditor may be inferred, but not from slight evidence; thus, not from receiving the single partner's note as a collateral security, nor from receiving interest from him on the joint debt, nor from a mere change in the head of the account, charging the single partner and not the firm. Still, as the creditor certainly can assent to this arrangement, and accept the indebtedness of one partner instead of that of the firm, so it must be equally clear that such assent and intention will bind him, if distinctly proved by circumstances.

SECTION X.

LIMITED PARTNERSHIPS.

THESE have been introduced into some of our States, by statutes, which differ somewhat in their provisions. Generally, they require, first, one or more general partners, whose names shall be known; secondly, special partners, who do not appear as members, nor possess the powers or discharge the duties of actual partners; thirdly, the sum to be contributed by the special partners shall be actually paid in ; lastly, all these arrangements, with such other information as may be needed for the security of the public, must be verified under oath, signatures of all the parties, and acknowledgment before a magistrate, and correctly published. When these requisites are complied with, the special partners may lose all they have put in, but cannot be held to any further responsibility. But any neglect of them, or any material mistake in regard to them, even on the part of the printer of the advertisement, wholly destroys their effect; and then the special partner is liable for the whole debt, precisely like a general partner.

In a New York case, the amount contributed by the special partner was, by mistake of the printer, stated at $5,000, instead of $2,000, and it was held that the associates were liable as general partners, although the plaintiff did not show that he was actually misled by the error. In another New York case, it was held that an assignment of the partnership property, providing for the payment of a debt due to the special partner, ratably with the other creditors of the firm, or before all the other creditors are satisfied in full for their debts, is void as against the creditors; but it would be valid as against the assignor and those creditors who think proper to affirm it.

(83.)

Articles of Copartnership between two Tradesmen. Articles of Agreement, Had, made, concluded, and agreed upon, this

[blocks in formation]

agreed, and by these presents do agree, to become copartners together in the art or trade of and all things thereto belonging, and also, in

buying, selling, vending, and retailing all sorts of wares, goods, and commodities belonging to the said trade of it is agreed, shall continue from the full end and term of

which said copartnership, for and during, and unto years, from thence next ensuing, and

fully to be complete and ended. And to that end and purpose he the said hath the day of date of these presents, delivered in as stock, the and he the said the sum of

sum of

to be used, laid out, and employed, in common trade between them, for the management of the said trade of to their utmost benefit and advantage. And it is hereby agreed between the said parties, and the said copartners, each for himself respectively, and for his own particular part, and for his executors and administrators, that each doth covenant, promise, and agree, to and with the other of them, his executors and administrators, by these presents, in manner and form following (that is to say) that they the said copartners shall not nor will, at any time hereafter, use, exercise, or follow the trade of aforesaid, or any other trade whatsoever during the said term, to their private benefit and advantage; but shall and will, from time to time, and at all times, during the said term (if they shall so long live), do their and each of their best and utmost endeavors, in and by all means possible, to the utmost of their skill and power, for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell and merchandise, with the stock aforesaid, and the increase thereof in the trade of aforesaid, without any sinister intentions or fraudulent endeavors whatsoever. And also that they the said copartners

shall and will, from time to time, and at all times hereafter, during the said term, pay, bear, and discharge, equally between them, the rent of the shop, which they the said copartners shall rent or hire, for the joint exercising or managing of the trade aforesaid. And that all such gain, profit, and increase, as shall come, grow, or arise, for or by reason of the said trade, or joint business as aforesaid, shall be from time to time, during the said term, equally and proportionably divided between them the said copartners, share and share alike. And also that all such losses as shall happen in the said joint trade, by bad debts, ill commodities, or otherwise without fraud or covin, shall be paid and borne equally and proportionably between them. And further, it is agreed by and between the said copartners, that there shall be had and kept from time to time, and at all times during the said term and joint business and copartnership together as aforesaid, perfect, just, and true books of account, wherein each of the said copartners shall duly enter and set down, as well all money by him received, paid, expended and laid out, in and about the management of the said trade, as also all wares, goods, commodities, and merchandises, by them or either of them bought and sold by reason or means or upon account of the said copartnership, and all other matters and things whatsoever, to the said joint trade, and the management thereof, in anywise belonging or appertaining, which said books shall be used in common between the said copartners, so that either of them may have free access thereto without any interruption of the other. And also that they the said copartners, once in three months, or oftner if need shall require, upon the reasonable request of one of them, shall make, yield, and render, each to the other, or to the executors or administrators of the other, a true, just, and perfect account of all profits and increase, by them or either of them made, and of all losses by them or either of them sustained, and also of all payments, receipts, and disbursements whatsoever, by them or either of them made or received, and of all other things by them or either of them acted, done, or suffered in the said copartnership and joint business as aforesaid; and the same account being so made, shall and will clear adjust, pay, and deliver, each unto the other, at the time of making such account, their equal shares of the profits so made as aforesaid; and at the end of the said term of or other sooner determination of these presents (be it by the death of one of the said partners or otherwise), they the said copartners, each to the other, or in case of the death of either of them, the surviving party to the executors or administrators of the party deceased, shall and will make a true, just, and final account of all things as aforesaid, and divide the profits aforesaid, and in all things well and truly adjust the same, and that also upon the making of such final account, all and every the stock and stocks, as well as the gains and increase thereof, which shail appear to be remaining, whether consisting of money, wares, debts, shall be equally parted and divided between them the said copartners, their executors or administrators, share and are alike.

In Witness Whereof, &c.

(Signatura ►

VARIOUS COVENANTS AND CLAUSES WHICH MAY BE INTRODUCED IN ARTICLES OF CopartnerSHIP ACCORDING TO CIRCUMSTANCES.

Not to trust any one whom the Copartner shall forbid.

And that neither of the said parties shall sell or credit any goods or merchandise belonging to the said joint trade, to any person or persons, after notice in writing from the other of the said parties, that such person of persons are not to be credited or trusted.

Not to release any Debt without Consent, &c.

And that neither of the said parties shall, without the consent of the other, release or compound any debt or demand, due or coming to them on account of their said copartnership, except for so much as shall actually be received, and brought into the stock or cash account of the said partnership. Not to be bound, or indorse Bills, &c., for any one without Consent, &c. And that neither of the said parties shall, during this copartnership, without the consent of the other, enter into any deed, covenant, bond, or judgment, or become bound as bail or surety, or give any note, or accept or indorse any bill of exchange for himself and partner, without the consent of the other first had and obtained, with or for any person whatsoever.

Neither Party to assign his Interest, &c.

And it is agreed between the said parties, that neither of the said parties shall, without the consent of the other, obtained in writing, sell or assign his share or interest in the said joint trade, to any person or persons whatso⚫

ever.

Principal Clerk to be Receiver of Moneys, &c.

That the principal clerk for the time being shall be the general receive of all the money belonging to the said joint trade, and shall thereout pay all demands, ordered by the said parties, and shall from time to time pay the surplus cash to such banker as the said partners shall nominate.

Parties to draw quarterly, &c.

That it shall be lawful for each of them to take out of the cash of the joint stock the sum of quarterly, to his own use, the same to be charged on account, and neither of them shall take any further sum for his own separate use, without the consent of the other in writing; and any such further sum, taken with such consent, shall draw interest after the rate of per cent., and shall be payable together with the interest days after notice in writing given by the other

due, within

of the said parties.

of

(84.)

Shorter Form of Articles of Copartnership.

Articles of Agreement, Made the

one thousand ning hundred and

day

between

(the names and residences of the two parties)

in the business of

as follows: The said parties above named have agreed to become copartners in business, and by these presents do agree to be copartners together under the name or firm of and in the buying, selling, and vending all sorts of goods, wares, and merchandise to the said business belonging, and to occupy the their copartnership to commence on the

day of

and to continue

and to that end and purpose the said (here state the contributions of each of the parties)

to be used and employed in sommon between them for the support and management of the said business, to their mutual benefit and advantage. And it is agreed by and between the parties to these presents, that at all times during the continuance of their copartnership, they and each of them will give their attendance, and do their and each of their best endeavors, and to the utmost of their skill and power exert themselves for their joint interest, profit, benefit, and advantage, and truly employ, buy, sell, and nerchandise with their joint stock, and the increase thereof, in the business aforesaid. And also that they shall and will at all times during the said Copartnership bear, pay, and discharge equally between them, all rents and ther expenses that may be required for the support and management of the aaid business; and that all gains, profit, and increase that shall come, grow, or arise from or by means of their said business, shall be divided between them (state whether equally, or in what proportions) and

all loss that shall happen to their said joint business, by ill commodities, bad debts, or otherwise, sha!! be borne and paid between them in the like proportion.

And it is agreed by and between the said parties, that there shall be had And kept at all times during the continuance of their copartnership, perfect, just, and true books of account, wherein each of the said copartners shall enter and set down, as well all money by them or either of them received, paid, laid out, and expended in and about the said business, as also all goods wares, commodities, and merchandise, by them or either of them, bought or sold by reason or on account of the said business, and all other matters and things whatsoever to the said business and the management thereof in any wise belonging; which said books shall be used in common between the said copartners, so that either of them may have access thereto, without any interruption or hindrance of the other. And also the said copartners,

once in

or oftener if necessary, shall make, yield, and render, each to the other, a true, just, and perfect inventory and account of ali profits and increase by them, or either of them, made, and of all losses by them, or either of them, sustained; and also all payments, receipts, disbursements, and all other things by them made, received, disbursed, acted, done, or suffered in this said copartnership and business, and the same account so made shall and will clear, adjust, pay, and deliver, each to the other, at the time, their just share of the profits so made as aforesaid.

« iepriekšējāTurpināt »