dition of an interest in the profit. Retiring money to another to assist him to prosecute an adventure, on an agreement that he is to receive half of the profits of the adventure, he was held as a partner towards third persons; and an agreement that he should be indemnified against loss did not make him less a partner (a). A partnership would also be held to exist where a retired partner leaves money in the concern at a rate of profit, or at an in the profits. annuity which rises and falls in proportion to the greater or less amount of profits (b). to participate Partnership by allowing name to be used as part ner. A partnership would be held to exist as regards third persons wherever the name of a real person is inserted in the firm with his own consent, or where the same is used in bills of parcels or invoices, or is allowed to remain over the door, although the party may have contracted that he should suffer no loss (c). If, voured to pre- however, he has used every precaution to prevent such use of his own name he will not be liable, even though he has not sought to obtain an injunction (d). Not if the party endea vent the use. There is no partnership without the intention to unite. What will constitute a partnership. FOREIGN LAWS. France. In no case is there partnership where there is no will to unite. Neither joint ownership of property, nor community of interest in profit and loss, is able of itself to produce partnership, unless there is the intention to enter in such a contract. Thus a clerk receiving a share of the profit instead of a fixed salary would not be held to be a partner. He would have no right over the partnership property, nor be liable for the partnership debts. So, where a person entrusts to another certain articles on sale, giving him the whole or a part of the proceeds in excess of a certain price, there would be no partnership. So a contract of bottomry bond, where both the lender and the borrower acquire a community of interest in the safety of the ship, does not constitute partnership (e). United States of America.-To constitute a partnership the person must be received into the association as a merchant, and (a) Coope v. Eyre, 1 H. Bl. 37; Bond v. Pittard, 3 M. & W. 357; Geddes v. Wallace, 2 Bligh, 270. (b) Elgie v. Webster, 5 M. & W. 518; Grace v. Smith, 2 W. Bl. 1000; Ex parte Chuck, 1 M. & Scott, 616. (c) Williams v. Keats, 2 Stark. 290; Ex parte Watson, 19 Ves. 458; Fox v. Clifton, 9 Bing. 116. (d) Newsome v. Coles, 2 Camp. 617. (e) Pardessus, Droit Commercial, vol. ii. 560, 563, 702, 969; Duvergier, Droit Civil Franc., tom. v. 48-56. not as an agent, and his interest in the profits must not be intended as a mere substitute for a commission or in lieu of brokerage. So the allowance to a clerk or agent of a portion of the profits of sales as a compensation for labour, or a factor a percentage of the amount of sales, does not render the agent or factor a partner, when it appears to be intended merely as a mode of payment adopted to increase and secure exertion, and when it is not understood to be an interest in the profits in the character of profits, and there is no mutuality between the parties. Shipments from America to India, upon half profits, have never been considered to involve the responsibility of partners, unless it flows from special agreements. The test of partnership is a community of profits, a specific interest in the profits, as profits, in contradistinction to a stipulated portion of the profits as a compensation for services. There is a distinction between a stipulation for a compensation for labour proportioned to the profits, without any lien upon such profits, and which does not make a person a partner, and a stipulation for an interest in such profits, which entitles the party to an account as a partner (a). partners. Spain. Agents who, instead of a salary, receive a share in Agents are not the profits are not partners; and when they have received such shares in due time, and not in anticipation, they cannot be called to restore any sum (b). SECTION V. COMMENCEMENT AND DURATION OF THE PARTNERSHIP. BRITISH LAW. mencement. Where no time is fixed for its commencement, the part- Date of comnership is held to have commencement on the date of the agreement (c). But where the partnership has commenced prior to that date, the time of the execution of the deed is immaterial (). (a) Kent's Comm., vol. iii. p. 22, 32; Muzzy v. Whitney, 10 Johns. R. 226; Rice v. Austin, 17 Mass. 206; Story on Partnerships, pp. 60-75. (b) Spanish Code, § 269. (c) Williams v. Jones, 5 B. & C. 108; (d) Battley v. Bailey, 1 Scott, N. R. 143. have com to date. How long it is presumed to exist. A partnership once shown to exist would be presumed to continue till it is proved to have been dissolved (a). A partnership Partnership at may be for a specific time or at will. If no terms are specified, term and at will. When term has elapsed. May be for one adventure. May be limited to one object. the partnership is held to be at will. A partnership continued after the specific time has elapsed is treated as a partnership at will. A partnership may be formed for one particular adventure, or for a continuous course of transactions without making the parties partners in any other business. A partnership may be limited to any particular object, as to the working of a particular patent or to operations to be carried on at some particular place (b). Who may be partner. Minor may be for his benefit. His duty on attaining his majority. Married woman may be if held as feme sole. SECTION VI. WHO MAY BE PARTNER. BRITISH LAW. Any person of age and of sound mind may be a partner, unless otherwise disqualified by law. A minor may be a partner for his own benefit, but he would not be liable for contracts entered into during his minority (c). On his attaining the age of majority, a minor may elect if he will continue that partnership or not. If he continues the partnership, he will then be liable as a partner; if he dissolve the partnership, and gives due notice to that effect within a reasonable time before or after he has become of age, he will cease to be a partner; and if he had derived no advantage or benefit he may recover any money paid by him for the partnership (d). A married woman may be a partner whenever she has capacity to trade, and is recognised at law as a feme sole (e). (a) Clark v. Alexander, 8 Scott, N. R. 161. (b) De Berkom v. Smith, 1 Esp. 29; Heyhoe v. Burge, 9 C. B. 431; Redg way v. Philip, 1 C. M. R. 415. (c) Corpe v. Overton, 10 Bing. 252; Holmes v. Blogg, 8 Taunt. 508; Goode v. Harrison, 5 B. & Ald. 157. (d) Goode v. Harrison, 5 B. & Ald. 157; Warwick v. Bruce, 2 M. & S. 205; Corpe v. Overton, 10 Bing. 253. (e) Ex parte Franks, 7 Bing. 762; 20 & 21 Vict. c. 85; Derry v. Mazarine, 1 Lord Raym. 147; Bardon v. Keverberg, 2 M. & W. 61. SECTION VII. PARTNERSHIP DEEDS AND REGISTRATION OF PARTNERSHIPS. BRITISH LAW. Partnership is regulated principally by the express contract or articles of partnership, but where the contract does not reach all the duties and obligations arising from that relation, then they are implied and enforced by law (a). Partnerships regulated by deed as far as it provides. Need not be in writing. What neces sary to prove in a suit for a agreement to breach of become partners. May be established by facts. It is not requisite that the contract of partnership be drawn out in writing; it may be established by verbal agreement or inferred from the acts of the parties (b). But an action, could not be sustained for breach of an agreement to become a partner without proof of the specific terms of the intended partnership (c). The existence of a partnership may be established also by the fact that the parties have shared profits and losses, that the party held himself out as a partner, and by any admission or advertisement tending to prove the existence of a partnership agreement (d). Partnership articles should state the nature of the business, Provisions of the commencement and duration of the partnership, the style of the firm, the capital and property of the firm, the amount to be contributed by each partner, the allowances to be made to, and the amount allowed to be drawn out by each partner, with provisions for the retirement of partners and the admission of new partners, the settlement of disputes by arbitration, dissolution of partnership, &c. partnership deeds. Bonds executed by partners, relating to their rights as part- Bonds exeners, bearing the same date as the partnership deed, are read in a court as part of the partnership contract (e). (a) Crawshay v. Collins, 15 Ves. 218. (b) Peacock v. Peacock, 16 Ves. 49; Alderson v. Clay, 1 Stark. 405; Studdy v. Sanders, 2 D. & Ry. 307. (c) Figes v. Cutler, 3 Stark. 139. (d) With regard to third persons, partnership is a fact of the existence of which they have rarely the means to obtain written proof. When they allege that a partnership has existed between certain parties in order to deduce their rights against them, they may be allowed to prove the existence of such partnership even by oral evidence, (e) Morison v. Moat, 9 Hare, 260. cuted at the same time. Articles cannot be altered except by consent of all. Clauses deli berately disre garded. Clauses not acted upon not binding. Partnerships must be by deed. What must be published. The articles which are agreed on, to regulate the partnership, cannot be altered without the consent of all the partners. The Court of Equity will decree the specific performance of any clause of the partnership deed where there has been a studied and deliberate disregard of the same (a). But when any of the clauses of the partnership articles have not been acted upon by the parties, they will be held as not binding by a Court of Equity (b). FOREIGN LAWS. France.-A partnership in collective name, or en commandite must be drawn up either by public deed, prepared and signed by notaries, or by an act under private signature, signed by all the partners, and written out in as many copies as there are partners. No oral evidence can be admitted against and besides the contents of the partnership deed written at the same time of the deed, or afterwards, even if it be a question below one hundred and fifty francs. The partnership deed must be made public by the publication of an abstract of it, signed by the notary, and by all the partners when the partnership is in collective name, and by the responsible partners only if the partnership is en commandite, or divided by shares. This extract must contain the names, surnames, condition and residence of the partners, the firm of the partnership, the designation of the partners, the authority to manage the business and to sign on behalf of the firm where such has been delegated to some of them only, the amount of capital invested, or to be supplied by shares en commandite, the time the partnership will continue, and the circumstances which cause its dissolution. It is not necessary to publish the proportion in which the profits and losses are to be divided, nor any of the clauses which do not interest third parties (c). The extract of the deed must, within a fortnight of its date, be sent to the Tribunal of Commerce of the district where the house is established, to be enrolled in the register, and posted up for three months in the hall. If the partnership has several houses of trade, situated in different districts, the extract must be sent, and must be enrolled and (a) Marshall v. Colman, 2 Jac. & Walk. 266. (b) Ex parte Harris, 1 Rose, 437; Jackson v. Sedgwick, 1 Swanst. 460; Const v. Harris, T. & R. 523. (c) French Code of Commerce, $$ 42 -44. |