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The codes and statutes of California, as amended and in force at the close of the twenty-sixth session of the Legislature, 1885 : with notes containing references to all the decisions of the Supreme Court construing or illustrating the sections of the codes, and to adjudications of the courts of oth online

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Online LibraryCaliforniaThe codes and statutes of California, as amended and in force at the close of the twenty-sixth session of the Legislature, 1885 : with notes containing references to all the decisions of the Supreme Court construing or illustrating the sections of the codes, and to adjudications of the courts of oth → online text (page 77 of 131)
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anil see the following cases, where pai*tici[)atioQ
iu the- profits has not constituted a partnership:
U hff/f'r V. Farmt-r, 38 Cal. 203; Uobinxnn v.
llaOr-', 40 Id. 474; Quackeiihiinh v. Sciict/pr, 54
Id. 439: and Bar/.er v. Cuza'U, 30 Id. 92, a
union of services and interest in property.

Sec section 2445, and note, where the above
question as to divisiou of profits evidencing
pirtncrship is settled.

Voluntary associations for mutual relief
in sickness or distress, by funis raised by in.tia-
tioii fees, fines, dues, etc., are pai tnersiiip-s
and may be dissolved by a court of eipilty if
they improperly excluile a mem'ier: Gorman v.



HUl-grx.i, 54 Id. 4G3; Clark v. Gr alley, 49 Id.
105.

Abortive corporaticn. — A partnership or
a joint-stock coini>aiiy is not nece.ssariiy the
result of an aliortive attempt to oru'anize a cor-
porarion: Blanrkarl v. Ka;ill, 44 Cal. 440.

Partnsrship as to real property. — A part-
nersliip may exist as to the purchase and sale
of real property, but such a partnership can
only exist w'lere the contract is reduced to
writin.,': Gray v. Pa'm^r, 9 Cal. GIG.

Interest in the capital — It is not neces-
sary that the capital sliould be jointly owned:
Vas-iar v. Cimp, 14 Barb. .341; Clinmpion v.
Boftwick. 31 Am. Dec. 376; Dale v. Ilamilldn,
5 JTare, 393; Perry v. Bitt, 14 Oa. G99.

Partnership must be proved like any
other fact, aud ca;iuot be establis'ie I by gen-
eral reputation: Undson v. Simon, G Cal. 4.".3;
Turner v. ^f-Ilhatnj, 8 Id. 575; Sinclair v.
Wood, 3 Id. 93. Books and receipts mav be



A'«>.sr-//, 14 Cal. 531. See an article upon these aflmicted to prove partnership if t!iey aCtord



associ;itiiins in 17 Cent. L. J. 342; see also
Hiisehl <^n the Law of Fraternities, sees. .3—3.

Community of interest in the proflt3
and losses constitutes a valid partnership:
Smith V. Moynihau, 44 CaL 53; Harr'is v.



any evidence thereof: Loae Star Co. v. Wist
Pt. Co., 5 Id. 447; Hale v. Braiuian, 23 Id.
511.

Dividing profits implies division of
losses: Sec. 24L»4, post.



2396. Ship-oicners.

Slc. 239G. Part owners of a ship do not, by simply using it in a joint enter-
prise, become partners as to the ship.

Partnership for the voyage and ven- venture: J/a-^/ v. Z»6 iro'/, 3 Woodb. & M. 193;

tors — If part owners, not jiartuers, equip ;md Ilintoii v. Law, 10 Mo. 701; G irdii^r v Cl-re-

fit out a vessel f.-r a common venture, they land, 9 Pick. 331; Buljinrh v. Winchenb'vk, 3

tlierjeby form a partnership for the voyage and Allen, 161; Philips v. LeAley, 1 Wash. 229.

2397. FuYmalinn of parlnfrnhip.

Sec. 2397. A parcuersLip can be formed only by the consent of all the par-
ties thereto, and therefore no new partner can be admitted into a partnership
without the consent of eveiy existing member thereof.

Consent necessary to a partnership.— No Mining partnership.— If one partner and

part owner iu a miuing claim convey- Ids inter-
est to a stranger, tiie latter becomes thereby a
partner with the other owners, r.nd entitleil to
all the rights of his grantor: 2^'isbely. 2^ash, 52
Cal. 540; also sec. 2516, post.



one can be made a partner by inberiuince or
ot'.ierwise against his will: Jan/uin v. B'iisjn,
11 How. Pr. 3S5; ilarqaandv. JS'. Y. ilj'j. Co.,
17 .Jo'ms. 525; and see llarjitr v. Lampi/n/, 33
Cal. G41.



ARTICLE II.

P.VRTXEESHIP PROPERTT.

24C1. Partnership properfy, what.

Sf-c. 2401. The property of a partner.ship consists of all that is contributed
to the common stock at the formation of the partnership, and all that is subse-
quently acquired thereby.

2402. PartiiPr'ii interest in partnership property.

Sec. 2402. The interest of each member of a partnership extends to every
portion of its property.

Partnars are jomt tenants, in a qualified therein ;-er my et p-r tout: 2 Bla. Com. 182;
Bens.-, /. e., witliouL the l>eiierit of survivorship. Story on Part., sec. 16; Lind. on Part. GGO.
of t'lc partnership property, having an interest

2403. Partner's share in profits and losspsf.

Sec. 2403. In the absence of any agreement on the subject, the shares of
partners in the profit or loss of the business are equal, and the share of each in
the partnership property is the value of his original contribution, increased or
ftiminished by his share of profit or loss.

406



Title X, Chap, I.]



PAETXEESHIP IN GENERAL.



§§ 240i-2406



Equality of shares in proSt and loss. — The
commissioiiers say that the point settled by
the above section has been doubtful, "but the
rule stated iu the text seems just: " See Shorb
V. Beaiflrif, 5G Cal. 4."^0. The mere fact that
partners have i)ut uner|ual amounts of capital
into the common stock, or that one has put in
all the capital and tlie others only their skill
and iu lustry, will make uo difference in the
rule: Gn.j'js'y. < lark, '2.3 Id. 4:27.

MJiiiis partnerships. — Here each member
shares in the proiit aud loss proportionably to
the interest he liol Is: Sec. 2513, post.

Unpaid advances and original capital —



Where there is no agreement between the part-
ner, they are to contribute equally to every
loss, whether the loss be unpaid advances, sea
Lind. on Part. SOO, or a loss of the original
capita] broughtiu; and this is the rule, whether
the partners conrrihuted to the capital in equal
shares or not: Taj't v. Schwamh, SO 111. 259;
Lind. on Part. 8J7; Molt-y Y.Br'ui", 120 Masa.
324; Jon-'S v. Bailer, 23 Hun, 3j7; see also
Carlisle v. Tfuhrciok, bl Ind. 520; Saa-ri/ v.
Tunr.iton, 4 Brad. App. 5o. But see this rule
quaiiSed ia Fla/j-j y. .'itowe. So LI. 1G4: Ererly
V. Durhorrm, 8 Phila. 93; Cameron v. Walsoa,
10 PLich. Eq. G4.



24C4. Wlicn dividon of losses implied.

, Sec. 2401. An agreement to divide the pi'oflts of a business implies an a^ee-

ment for a corresponding division of its losses, unless it is otherwise expres^ly^

stipulated.

"This settles what has been heretofore a doubtful proposition:" Commissioners' note.

2405. Partner maxj require application of partnership property to payment of

dfbts.

Sec. 2405. Each member of a partnership may require its property to ba
applied to the discharge of its debts, and has alien upon the shares of the other
partners for this jjui-pose, and for the payment of the general balance, if any,
due to him.



Priority of partnership debts. — The debts
of a partuvVsliip luusc be discliargcd from the
joiiit pr. perty before any portion of it can be
applied to the individual debts of the partners:
C'/'/ct - e V. .S (-»-/, 9 Cal. 04; Burjife v. Baiin, 22
Id. 104; Jonex v. Par>>ons, 25 Id. 100; and a
prior levy of execution by an individual cred-
itor on the tinn property gives him no right of
proiiercy against the lirm creditors who have
not y.t obtamed judgment: Conroy v. Woods,
13 Id. G2j.

partuershig of two or more firms. — In
thi.i ca=e tlie creditors of one of the firms are en-
tit'ed to a preference in tlie payment of their
debts, over the cretlitoi-s of the wliole pai-tner-
ship, out of the money, the proceeds of the
property of tliat firm: Bullock v. IJ aboard, 23
Cal. 400.

i urohaser of partner's interest — A mort-
gagee cf .1, partner's individual interest in part-
ne:oiii]) property hoPs subject to the linn
ci-e:iitors' rights \o subject the property to the
payment <'f tlie firm debts, and is the duty of
the .sheriff to enforce this right: Sheey v. Graves,

2406. TI7irr^ property is partnership property by presximpiion.

Sec. 240G. Property, •whether real or personal, acquired with partnership,
funds, is presumed to be partnership property.



5S CaL 449. The same principle applies to
purchasers at execution sriles. \Vhen tlie sher-
lif sells under exeeut.on for an individual debt
all the interest of ouj partner in the tirin, as
he may, Clark v. Cm-ltinj, 52 Id. G17, the
purchiiser under the execution becomes a
tenant in coinmun with the other pariners,
taking such interest subject to the lie::s of tha
other partners: Bo'-i.u>o,i v. Tecis, S3 Cal. Oil;
Gil more v. Xorth Arnericun Land Co., Pet
4G0; .Valter of Smith, IG Johns. 102, ICC,
and the reporter's note; Al en v. WtlLi, 22
Pick. 450; J/a.'^kins v. Everett, 4 Sneed, 531^
Jleii ic]k v. Wh'.lio V, .52 N. Y. 1-18; iri'7a/7M
V. (^«^c, 49 Miss.777; Lind. on Part. 690; Story
on Part., sees. 2G2, 2G3, aud nutes.

Posses-!ou by in!rr/,a.-ier. — And such purchaser
has no riglit to the exclusive possession of the
proiierty: ll'i\<on v. Siob(i/-/i, 59 Ala.4SS: da/jeit
V. KUbourDe, 1 Black, 346; and if ho excludes
the other partners from possession, tliey may
have an ac-ion against him: Pwje v. Carpenter,
10 X. U. 77.



Parol cviden:e to [rove that hind standing
in nam;; of one of the partners is in fact part-
lier.=?hipp:o:ierty is a Imissible: Ziokv. Cl>'7n''7}s,
41 Iow:i, 95: Shricooil v. St. Paul etr. /?. Co.,
21 Minn. 127: Bird v. Morrison, 12 Wis. 13S;
Fiir.hilil V. Fairchihl, 04 N. Y. 471; see also
Liltli' V. S:ied<' or, 52A1.1. 1G7; Pretcn/ v. Mont-
gomery, 28 Ark. 2.')G: Pall Waxr W'ltalin'i Co. v.
B<jrden, li) Cus!i. 458; C lUns v. Dicker, 70
Me. 23. For a dilT rent rule in Pennsylvania,
Bee ].ef\>rr«s Ap, fill. GO Pa. St 122; but see
Blark's Aj,;,e I, y.) Id. 201.

Improvements on land owned by one part-
ner, or by several partuera as tenants iu com-



mon, made with partnership funds, are part-
nei-shi[) property : Lane v. Tyler, 40 Me. 242i
Kendill v. Rkfer, 35 Barb. 100; 1 Uncock v.
Phtlf;s, 44 X. Y. 97; Deveny v. Mahoney, 3 N.
J. E J. 247.

Th3 surviving partner of a firm o\rnin§
real estate is more tlian a mere t-enant in com-
mon with the representatives of the estate ol
the deceased partner. He is trustee for the
pur)>o?e of v.imlin^' up the atiairs of tlie firm:
Smith V. Walker. 38 Cal. 3S5.

In equity real estate is treated as mer*
personalty, so far as the pa^nnent of partner-
ship debts ami the adjustment of partnership



407



|§ 2410-2412



OBLIGATIOXS.



[Div. Ill, Part IV,



rights are concerned: Diipny v. Leavenworth, freed from equitable claims of others, upon

n C:d. '2C>X grounds of policy: JJnjuii/ v. /.eafi-nicorlh,

A bona fide purcli-'ser for a valuable con- )7Cal. 2()3; seeLind. ou I'art., Evvell's uotes, p.

Bideratiou, witliout notice of tlie partnership Go'2, ou this subject generally,
character of the property, will take the title

ARTICLE III.

MUTUAL OBLiaATlON OF PAllTNERS.

2-110. Parlners (rusfeeafor each other.

Sec. 2410. The relations of partners are confidential. They are trastces for
each other within the meaning of Chapter I. of the title on trusts, and their
oblig-ations as such trustees are defined by that chapter,

2411. Good faith to he observed between them.

S.'rc. 2411. In all proceedings connected with the formation, conduct, disso-
lution, and liquidation of a partnership, every partner is bound to act in the
highest good faith toward his copartners. He ma}' not obtain any advantage
over them in the partnership affairs by the slightest misrepi'esentation, con-
cealment, threat, or adverse i:)ressure of any kind.

No advanta.!?e obtainable.— A partner is Whiteside v. Lnferty. 3 Humph. 150; Freeh v.



bound to sliare with liis copartners any bcnetit
which lie may have been able to obtain from
other [icoi'jle, and in which the firm is iu honor
and conscience entitled to participate: Warren
V. Srhaniwaht, 62 Cal. 50; Todd\. h'afert>/,'Sd
N. J. E(|. 254; Gray v. Portland Bank, 3 ^lass.
3G4; Lockwood v. Beclcwith, 6 Mich. 108;
Anderson v. Whitlock, 2 Bush, 398; Lowry v.
Coob, y La. Ann. 502; Eason v. Cherry, 6
Jones E(|. 201; Lane v. Carpenter, 3D Ind.
284; Coarsen^s Appeal, "iQ'^Ci. 8t. 220; Solomon
V. So'omnn, 2 Ga. 18; American Bmik Xote Co.
". L\l.-<on, 1 Lans. 388; S. C, 50 Barb. 84;
Mahou V. JlfcCleman, 10 W. Va. 419; Wash-
burn V. Washburn, 23 Vt. 577; Kelly v. Green-
leaf, 3 Story, 93; see sec. 2435, vest.

Tliis does not refer to matters outside of
the partnership business. The obligations
of copartners inter se.se, wliatever may be t'lea'



Blarhiston, S3 Pa. St. 474.

Selling partnership property. — A!thou\jh
one partner may sell tlie piOjierty of the firm
and ^ive good title to a third part'/, lie cannot
Sell t > himself. Such sale is simply void, and
the legal anil equitable title remains ps it was
before the attempted transfer: Coms'ock v.
Bnchanin, 57 Barb. 127; Nelson v. Iluyner, 66
111. 4S7.

Partner may purchase copartner's inter*
est. A partner may p.u-chase liis copartner's
interest in real estate when botii have an equal
opportunity and means of knowing tlie value
of tlie property ond its condition, and the pub-
licity ot a sheriff's sale is prima facie evidence
of al)sence of frauil: Bradbury v. Bams, 19
Cal. 120.

Rsnewal of lease. — One partner having ob-
taini.'il a renewal of the lease of tlie partnership



nature and extent, refer only to the conduct of projierty will not be adowcd to treat this re-

the business in which the firm is engaged. Oat- newed lease as his own: Mitchi'll v. Read, 01

Bide of such business there is no lestraiut upon Barb. 310; S. C Gl N. Y. 123; see also Afi/"-

the right of either partner to traffic for his own fan v. Kuf/l>'e, 9 Cal. 602; Eakln v. Shainaker,

profit: McKenzie v. Dirkinson, 43 Cal. 119; 12 Tex. 51; see sec. 240j, o/z^c.

Kinn v. Whiton, 15 Wis. 084; Brown v. WBrlen, See generally: Liud. ou I'art. 500 et seq.
4 Nev. 195; Wheeler v. Saye, 1 Wall. 518;

2412. Mutual liability of partners to account.

Sec. 2412. Each member of a partnership must account to it for everything
that he receives on account thereof, and is entitled to reimbursement therefrom
for everything that he j^i'operly expends for the benefit thereof, and to be
indemnified thereby for all losses and risks which he necessarily incurs on its
behalf.

"Where the loss is attributable to the cul-
pable negligence of a partner, and the act i)y
wliich the los.s was occasioned was unaut'uiri::ed
or forbidden, and not subsecjuently ratirie<l, he
alonj is liable: (-'rove v. Miles, 85 ill. 85; L"Oi:ey
V. i.iUenioater, 11 lleisk. 133; Pierce w Daniiln,
25 Vt. 624; Sviilh v. Lorii.;/, 2 Ohio, 440;
Lef'ver v. Lfiiderteood, 41 Pn. ii'z. 50-"); this v.
Ilellinan, 25 Onio St. ISO; Blur v. Johnston, 1
Head, 13; I lo'ri-ll y. Harney, 5Ark. 2,"0; Jtsnap
V. ( 'ook, X. J. L. 434.

Partner's aots bi.ids firm: Sec. 2420. post.

luterest on capital advanced.— In the



SeeLindleyon Part., Ewell's notes, 760, 777-
781.

"Where a partner acts bona fide and with
a view to the benelit of the firm, and without
culpable negligence, the loss must be eijually
borne by all: McNair v. Rayland, 1 Dcv. Eq.
616; Wa'pole v. Renfroe, 10 La. Ann. 92; Rob-
erts V. Totten, 13 Ark. 609; Jenkins v. Peckin-
3>nn>/h, 40 Ind. 133; Jldlerv. W ilUam->wii.z. 23
Avli. 500; Morrison v. Smith, 81 111. 221;
Campbell v. Stewart, 34 Id. 151; Day v. Lock-
uyod, 21 Conn. 185; Kariiii v, Donegan, 15
Kan. 4Jj.



408



Title X, Chap. IT.] GENERAL PARTNPIRSHTP. §§ 2413-2424

absence of a special agreement to that effect, rule applies: Tntt v. Land, 50 Ga. 3;i0; Jark-

no m tn-Kt will he allowed uixiu capital ad- sou v. Johusoit, 11 Hiia, 509; Init sec Liiulley

vaiiceil l)y any ])artiicr until after a ge!iei';il on Part. , sec. 7SS, and note; and note under

eettleuieut (,r dissolution: June's v. Jukc-.s, 1 Iloblen v. Peac<>, 45 Am. Dec. 51S. Tliis ques-

Irevl. E(|. 3.j2; iJenha v. Smith, 20 Ala. 750; tion must l>e solved by and must dei>ei)d upon

Lcp v. Lo.<lJ>rooke, 8 Dana, 214; Wajiinncr v. the cii-ciimstances of each case: (7y.';"r'.'* .4;);/ea^,

Gran, 2 lieu. & M. 003; Ga<je v. Purmelee, 87 02 Pa. St. 73; Buckiiujhani v. Lud.nm, 2J N. J.

111. ."Vii). Eej. 345; JohiiHoii v. llarUhoriie, 52 N. Y. 173;

Where one partner puts in his skill and liis and note to JJoldeii, v. Peace, 45 Am. Dec. 518,

time, and the other puts in cafjital, the same supra.

2413. No covi2oensalion for services to firm.

Sec. 2413. A partner is not entitled to any compensation for servioea
rendered by liim to the partnership.

An agreement for compensation may be the affairs of the partnership: Gri'jffn v. Clark,

male: I'niucy. Thatcher, 2o\Wnd. ■i')0;Grhi(js 23 C d. 427.

V. Clark, 23 Cal. 427. The commissioners, in Atto:-n3y at law — Rsfusal to render ser-

their drauLrht, say the same tiling. vises.— Wliere an attorney r.t liw refuses to

After dissolution by death, if the sur- act as partner, or to perform the functions of

viviug partner exi>end3 his time and labor in such in the prosecution of a cause whicb has

tlij care and management of the partneiship been intrusted to bis finn, he is not entitled to

property, liy wliicli its value is en'.ianced, he any part of the fees subse(|uently earned by his

Ehoiiid receive compensation for the same, to pa"t;icrs in the cause: Denver v. Rijanc, 01) U.

be deducted out of the profits arising from the 8. 355; and see also Marnh's Ap/iffU, GO Pa. St.

e: h meed vain J of the property. B it hes'.iould 33; Lindley ou Part., 774, 775, anii notes.

receive no coaipcnsation for merely winding up Swell's ed.

ARTICLE IV.

RENUNCIATION OF PARTNERSHIP.

2417. Ilenunciatio7i of future profils exonerates from liability.

Sec. 2417. . A partner may exonerate himself from all future liability to a
third person, on account of the partnership, b}' renouncing, in gootl faith, all
participation in its future profits, and giving notice to such third person, and
to his own copartners, that he has made such renunciation, and that, so far as
may be i]i his power, he dissolves the jDartnership and does not intend to be
liable on account thereof for the future.

"The provisions of this and the following not be as regards general partnersliips: See
Bection are iute'nded to enable a partner wlio Skiiiwr v. Datjton, 10 Johns. 513, 538:" Com-
is unable to )irocure an immediate lUssolutiun mis ioni-rs' note.

of the tirni to escape from future entangle- Dissolution of partnership: See sees. 244i)
nient. They are certainly new in so far as et set^.
they rel.ite to special partnerslii[is, but may

2413. Effect of renunciation.

Sec. 24iS. After a partner has given notice of his renunciation of the part-
nership, he cannot claim any of its subsequent profits, and his copartners may
proceed to dissolve the partnership.

CHAPTER II.

GENERAL PARTNERSHIP.

Article I. What is a General Partnership 2424

II. POWEIUS AND AlTHOUITY OF PARTNERS 2423

III. Mutual Obligations of Partners 2435

IV. Liability of Partners 2442

V. Termination of Partner.siiip 2449

\l. Liquidation 245S

VII. Of tue Use of Fictitious Naaies ► «... 2-^0

ARTICLE I.
what is a general partnebship.

2424. General partnen^hip , wJiaf.
a&c 2424. Every partnership that is not formed in accordance with the laTy

409



§§ 2428-2430 OBLIGATIONS. [Div. Ill, Part IV,

concerning r.pecial or mining partnerships, and every special partnership, so far

only as the general partners are concerned, is a general partnership.

Special partnerships: See sees. 2t77 - 510, ;>o.s<.
Mining; partxiersliips: See sees. 2511-23:^0, ^^os/!.

ARTICLE II.

POWERS AND AUTHORITY OF PARTNERS.

2428. Power of majority of partner.

Sec. 212S. Unless otherwise expressly stipulated, the decision of the major-
ity of the members of a general partnership binds it in the conduct of its
business.

Minority must be consulted, and any tienfc partner: Lind. on Part. G90 et seq.; ^fto«

other eouise ot pioceeding on the part of the v. Johnson, 32 N. II. 9; Liriii /■■iton v. L>/'h, 4

majority is not in goo:l taith: Lind. on Part. Johns. Cli. 573; Story on Part., sees. 12."], 125.
(juO; SCO Chicaj J, B.dsQ. li. Co. v.lloijt, I Brad. Provisions as to povVGr.'j of majorities

App. 371. in articles of incorporation ni'.i t he strictly fol-

^-hange in the business.— It is well settled lowed: Story on Part., sec. 213; Wnterhury v,

the niajority can govern only in the dne course Express ('o., 50 Barb. 157; S. C, 3 Abb. Pr.,

■of business, and cannot change the chai-acter N. S., 1G3.
of the business against the will of one dissen- Miiiing partnerships: Sec. 2520, post.

2,4.23. Authority of individual partner.

Sec. 2420. Every general jDartner is agent for the partnership in the trans-
action of its business, and has authority to do whatever is necessary to carry on
such business in the ordinary manner, and for this purpose may bind his
copartners by an agreement in writing.

No authority beyond soope of partner- 141; Pierce v. Jadson, 21 Id. C3C; Curri/ v.
ship business.— One niember of a copartner- U7iUe, 51 Id. 530; Ilendrie v. JJerkowUz, 37 Id.
.ship cannot be made liable for the act or under- 113.

taking of another in a transaction not embraced Ratiiioation. — The mere fact that a partner,
in their original partnership business, unless upon being informed that his copartner haa
proof is adduced that lie knew of the transac- given a firm note for his iudivitlual debt, does
tion, and assented to it, or subsequently ratiiied not deny his liability thereon, does not, per se,
it: Goodman v. IVhiie, 25 Miss. 103; Ilotcldn amount in point of law to a ratilioation of the
V. Kent, 8 i\Iich. 520; Vlaiffon v. Ilanly, 27 Mo. Reiihln, v. Cohen, 48 Cal. 545.
53G; WiUes v. March, 30 N. Y. 344; Lomj v. Cas^s of guaranty, proof of authority must
Carter, 3 Ired. L. 238; Davis v. Blackwell, 5 be male: Story on Part., sec. 127.
Brad. Aiip. 32; and see Rich v. Dans, G Cal. Conmionliability for losses: See see. 2412.

2430. What authority partner has not.

Sec. 2430. A jjartner, as such, has not authority to do any of the following
acts, unless his copartners have wholly abandoned the business to him, or are
incapable of acting:

1. To make an assignment of the partnership property or any portion thereof
to a creditor, or to a third person in trust for the benefit of a creditor or of all
creditors;

2. To dispose of the good-will of the business;

3. To dispose of the whole of the partnership property at once, unless it
consists entirely of merchandise;

4. To do any act which would make it impossible to carry on the ordinary
business of the partnership;

5. To confess a judgment;

6. To submit a partnership claim to arbitration;

7. To do an}^ other act not within the scope of the preceding section.

Subd. 1. As3i3nins partnership prop- letter of the absconding partner were held to

erty. — That one partner, when his copartners give a;ithorii;y; and see Pa'iiwr v. Mi/i-rx, 43

are absent at a great distance, may as;!ga the Barb. 4j:); Dcrkard v. Oisc, 33 Am. Dcj. 28?.

fn-m property: Farbi-s v. SraniieU, 13 Cal. 242; "As the code settles the law an 1 denies the

Beruheim v. Porter, 3 West Coast Rep. 434; existe ice of the authority, it would not be

In Welles v. March, 30 N. Y. 344, the acts and proatablo to examine at leug.h the cases in

410



TnxiX, CiiAF. II.]



GEXSKAL PARTNERSniP.



§§ 2431-2435



which the question has heen considered:" From
coiniiiissinners' statement.

Su'-d. 2. "A sale of ths good-will of t!ie
business would j)rj\ent it from being eanicd
ou, au 1 therefore it would seem clear that such
a salj is beyond tho scope of a partner's author-
ity:" From co:^iniiislo.icrs' Uiite.

Su jd. 3. B?lQ by one partner.— That one
of a partuershi,! ia cattle may sell all the catUo,
see i'rlten V. Mdllr, .S West Coast Rep. (J 19.
In tho followiai,' cases it has been held that in
the absence c.f fraud, one partner mi.;ht sell tin;
whole of the goods of t'.ie partnership: Ariiold
V. BroiVJi, O.J A:n. Dec. ^.Oj; Mount jo i v. I I.A-
den, \1 Id. S!;l; Dvckaril v. Case, 30 U. 237,
and note; WiHirtnu v. Barnett, 10 Ka-.i. 4.3.);
Ui/rsc'/cUler v. Kcy-o'r, 5'J Ala. ?>'^>S; Wiltiams v.
Iiobcrts, G Coldw. -10?>; but see Kimhally. Ilnm-
iltoitefc. Ins. Co., S 1j0sv\'. 405. But he cannot
convey the realty of the firm by assi'nment or
deed:"/;,/-,er V. MrConiirll, IT'IH. 217.

Subd. 4. Prcveatins the carrying on of
business: "Sec din:-cntii:g opinion of Deuio,
J., in Mabhctt v. White, 12 N. Y. 442. Tiiis
rule was (•:'.!phatii;ally asserted as to corpora-
tions in Ahhott V. Anierhaii Hard Uahbcr I'o.,
3o Barb. 578; and hasrjniteasmuch application
to iavtnerfdii|is: " Commissioners' note.

Su'cd. 5. Confe-tsins judgmout — -'The
principles cf the common law which operate
to disable a partner from binding his copartners

2431. rartner'a acts in bad faith, icltm iuf(f('ctual.

Sec. 2431. A iiartner is not bound by any act of a copartner, in bad faith



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