Vol. III. Ch. IV. Concise Form of Power to determine the Part. nership. (3) CHAP. IV. Deeds, &c. relating to Partners. Memorandum of an agreement made this 1st day of January A. D. 1823, of the one part, and C. D. of of the other part. between A. B. of London years, Whereas the above-named A. B. hath for some time carried on the trade and business of a in London aforesaid, and the said A. B. and C. D. have agreed to become and continue copartners in the said trade or business for and during the term of years from the date hereof (2); now therefore it is hereby declared and agreed, by and between the said A. B. and C. D., that they shall and will become and continue to be copartners in the said trade or business for and during the full end and term of commencing from the date hereof, receiving and paying, in equal proportions, the profits and losses, if any, arising from the said trade, and upon the terms following; that is to say, [here state the particular terms agreed upon, and which may be collected from the following precedents, and see the next precedent, or if the parties intend to have a formal deed prepared, the agreement may run thus," and it is hereby agreed, that in case either of the said parties hereto shall think fit to require the same, a deed of copartnership between the said A. B. and C. D., adapted to the nature of the said trade, and containing all usual and proper covenants and stipulations between copartners therein, shall be prepared, settled, and approved of by some eminent conveyancer, and shall be duly executed by the said A. B. and C.D., within months after having been requested so to do; and in the meantime and until such deed shall have been executed by the said parties, they hereby engage and agree to behave and conduct themselves in the said trade and business diligently and faithfully, and to do, perform, and observe all acts, matters, and things essential and proper to be done, performed, and observed for the better and more advantageously carrying on the said joint trade." years, Provided always nevertheless, and it is hereby agreed, that it shall and may be lawful for either of the said parties to put an end to and determine the said copartnership at any time during the said term of upon giving months notice to the other of them of his intention so to do; and that at the expiration of that time, the said parties respectively will sign, and cause to be inserted in the London Gazette, the usual notice of dissolution of the said copartnership (4). In witness whereof, the said parties have hereunto subscribed their hands, the day and year first above written. Witness, &c. (1) As to agreements for copartnerships in general, see ante, 3d vol. 230. n. 3, 4; as to what number of persons may enter into a partnership, id. 228; as to the effect of this agree. ment, id. 250. A court of equity will in ge neral decree a specific performance of an agreement to enter into a partnership for a specific time, though it be by parol, 3 Atk. 883. 2 Ves. 629. 9 Ves. 357.; but not if by the terms of the agreement the partnership be determinable at pleasure; as if it be stipulated Articles of Agreement made and entered into the 1st day of January Vol. III. Ch. IV. Whereas the said parties hereto now separately carry on the trade or The like more business of [describe fully according to the facts,] and are desirous formal, and of becoming copartners together in the said trade, for the purpose of stating particuextending their connections therein: and whereas it not being convenient of Copartnerlarly the Terms for them to commence the said copartnership immediately by reason of ship. (1) their own respective engagements in trade, they have agreed to enter into such stipulations respecting the same as herein-after are expressed. Now these presents witness, that in pursuance of the said agreement, they the said A. B. and C. D. do hereby for themselves, severally and respectively, and for their several and respective heirs, executors, and administrators, covenant, declare, and agree with and to each other, and the executors, administrators, and assigns of each other, in manner following; (that is to say) that they Agreement for the said A. B. and C. D. shall and will, on or before the day of the future Partnext ensuing the date hereof, enter into copartnership together in nership by Deed. the trade or business of and sign, seal, and deliver proper deeds or other instruments in writing, to be prepared or approved by some eminent conveyancer or barrister learned in the law, to carry the same into day of in such Deed. effect. In which said deeds or instruments, or in some or one of them, it Covenants, &c. shall be provided and declared, that the said copartnership shall commence to be contained upon the said and continue for the space or term of years thence next ensuing, if the said A. B. and C. D. shall so long live, under the firm of and be carried on at ; that the capital stock shall consist of £- ; that if either party bring in a further capital (2), or leave his share of the profits in the trade, the capital stock shall be liable to make good the same, with interest, after the rate of £5 per cent. per annum; that either of the parties may borrow money for the use of the trade, with the consent of the major part of the others of them; that each party shall have a separate estate in the capital stock and the proceeds thereof (3); that the copartnership stock shall be employed solely for the joint trade; that the profits and loss thereof shall be borne by each of the parties in proportion to his capital therein; that the stock in trade and other insurable property shall be insured at the expence of the joint trade; that all expences and casual losses shall be borne by the parties in proportion to their respective interests (4); that clerks and servants shall not be taken or discharged but by mutual consent; that neither party shall take apprentices without the consent of the other; that the premiums with apprentices shall be added to the joint stock; that entries shall be made in proper books of all the copartnership transactions and affairs; that the copartnership books shall be kept at the counting-house where the business is carried on, and be open for the inspection of all parties, and shall not be removed from thence, unless to be produced in court; that half-yearly rests shall be made in the accounts of the joint trade and signed by the parties respectively; that the surplus of the proceeds after payment of expences shall be divided between the parties at Christmas in every year, in proportion to their respective interests (5); that the parties shall diligently employ (1) As to the manner in which agreements of this nature should be framed, see ante, 3d vol. 230. Watson, 64. receive what under the circumstances of the (2) As to the effect of bringing such ca- equal share, see 2 Camp. 45. 16 Ves. 49. pital, see ante, 3d vol. 234. (3) See ante, 3d vol. 234. It is advisable to insert clauses as to division of interest, though where there is no such agreement each party will be entitled to S. C. 2 Bla. Com. 188. Co. Lit. 163. (5) As to the manner of compelling partner to deliver an account where there is no agreement to that effect, see ante, 3d vol. 264. Vol. III. Ch. IV. themselves in the business of the joint trade, and not be concerned in any other trade; that they will be faithful to each other in all the copartnership concerns; that neither of the parties shall apply the partnership monies to his own use, except the annual sum of £ by way of subsistence money (1); that each party shall be allowed his reasonable expenditure upon customers; that neither party shall suffer the copartnership estate to be charged with his private debts; that neither party shall buy or sell on the copartnership account beyond a certain amount; that neither party shall accept or give bills of exchange or other securities but in regular course of trade; that neither party shall lend or give credit, nor compound or release debts, nor become bail, nor engage in speculative enterprizes, without the consent of the other; that neither party shall dispose of his share, except by will, without the consent of the other; that if either party conduct himself contrary to the provisions therein contained, the partnership shall be void; that either party shall have liberty to quit the partnership on giving twelve months notice (2); that on the death of either party before the first half-yearly settlement of accounts, his capital shall be returned, and the profits and loss accrue to and be borne by the survivor; that on the death of either party after the first half-yearly settlement, the other shall take the stock, the amount of which shall be paid by instalments, to be secured by bond, with sureties upon the representatives of the deceased party assigning his share of the stock; that at the expiration of the copartnership term each of the parties in turn shall have the refusal of the stock at a valuation, and if both parties refuse, it shall be sold by auction; that credit given after the end of the partnership shall be at the risk of the person crediting; that disputes shall be referred to arbitration; and lastly, that each party will execute further assurances if requisite. And in such deed or deeds so to be prepared as aforesaid, shall also be contained all such other covenants, provisoes, conditions, stipulations, clauses, and agreements, as are usually inserted in deeds or instruments of copartnership between persons of the same or a like trade or business, or which, in the opinion of counsel, shall be necessary or proper for the purpose of carrying the true intent and meaning of the said parties into execution; the expences of which said deeds or instruments and of all matters preparatory or otherwise relating to the same, shall be borne by them the said A. B. and C. D. in equal proportions. And it is hereby further agreed and declared by and between the parties hereto, that in case any doubt, difference of opinion, or question shall hereafter arise between them, with respect to the carrying these presents into effect according to the true intent and n.eaning thereof, or relative to this present clause or agreement, the same shall be referred to and be decided by two counsel in the law of the degree o. barrister (or by two persons, or by E.F. and G.H. or any other persons) one to be named by each of the said parties hereto; and in case of difference between them, then by any third counsel (or person) to be by such two counsel (or first-mentioned persons) named, and the opinion of such two counsel (or persons) to be so first named, or of such third counsel (or person), or of any two of them, shall be binding and conclusive upon each of the parties hereto, and their respective executors and administrators, and by them respectively submitted to accordingly, without further controversy; Reference of (1) As to the manner in which a partner receiving money should apply it, see 3 Ves. & B. 36. Where partner embezzles property the other should apply to court of equity for relief, ante, 3d vol. 264. (2) As to this, see ante 82. n. 1. (3) This agreement is no bar to any pro ceeding at law or in equity, 1 Wils. 129. 2 Bos. & B. 131. 2 Ves. 129. 8 T. R. 139. When the award however has been made it is absolutely final, and not to be reversed, 2 Anst. 519. 2 Atk. 394. 501. 3 Atk. 529. and which said reference shall be by mutual bonds, and such other Vol. III. Ch. IV. reciprocal stipulations, as are usual or proper in similar cases. In witness, &c. ner into a Firm, chants and Warehousemen, Recital of Part nership between A. and B.; Shares ; 2-16ths out of the Proportions of A.; This indenture of three parts, made the first day of January, in the third Deed of Copartyear of the reign of our sovereign lord George the fourth, by the grace of nership admitGod of the united kingdom of Great Britain and Ireland, &c., and in the year ting a new Partof our Lord 1823, between A. of, &c. merchant, of the first part, B. of the and providing for same place, merchant, of the second part, and C. of the same place, ware- the future carryhouseman, of the third part. Whereas the said A. and B. have exercised and ing on of the carried on the trade and business of merchants, warehousemen, and factors Business of Merin copartnership together, pursuant to a certain indenture, bearing date on or about the first day of August 1820, and made between the said A. of the and Factors. (1) one part, and the said B. of the other part, whereby they the said A. and B. agreed to be and continue such copartners for and during the term of fourteen years from the 31st day of July then last past, and to be interested in the capital or joint stock thereof, and the gains, profits, and increase to arise thereby and thereupon, in equal shares and proportions: And whereas it hath agree to admit C. been agreed between the said A. and B. and the said C., that the said C. shall a Partner; be admitted and become a partner with them in their said trade or business of merchants, warehousemen, and factors, from the 31st day of July now last past, for the term or space of six years, part of the said term of fourteen for 6 Years; years; and that the said C. shall have and be entitled to three sixteenth C, to be entitled parts or shares of the gains and profits of the said business, in manner fol- to 3-16th lowing; that is to say, to two of such sixteenth parts, out of the share or proportion of the said A. therein, under the said recited indenture (which two sixteenth parts the said A. hath agreed to relinquish and give up, and consented that the same shall be taken out of his said share accordingly), and the remaining sixteenth part out of the like share or proportion of the said 1-16th out of the B., he the said C. bringing in a share of capital in manner hereinafter men Proportion or tioned; and that such partnership so now agreed upon, and also the part- Share of B.; nership between the said A. and B., after the expiration of the said term of six years, or sooner determination of the said partnership so now agreed on, shall be carried on between the said parties respectively, in the manner and under and subject to the provisoes, conditions, covenants, declarations, and agreements hereinafter mentioned and contained or referred unto. Now this indenture witnesseth, that for the effectuating the said agreement, and in consideration of the mutual trust and confidence which they the said parties to these presents have and repose in each other, each or every of them the said A., B., and C. respectively, for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree to and with the others and other of them, their and his executors and administrators, mutually and reciprocally, in manner following; that is to say, that they the said A., B., and C. to become and shall and will be or become, continue and remain copartners and traders in continue Partthe said trade or business of a merchant, warehouseman, and factor, and in ners for 6 Years all things incident and belonging thereto, and in all other businesses which they shall mutually agree to trade and deal in, for and during the term of six years, to commence and be computed from the 31st day of July now last past, and fully to be complete and ended, if they the said parties shall C. to bring in (1) This precedent was settled on the be- above precedents will be found for the most half of all parties, by the late eminent con- part here applicable. veyancer, Mr. R. Hughes. The notes to the 88 Vol. III. Ch. IV. A. to bring into the said Business £10,500; B. to bring in £12,250; Present Stock and Fixtures in Premises where Partnership carried on to be taken according to a Valuation, and allowed as Part of Stock to A. and B.; C., new Partner, to bring in £5,250, making a joint Stock of £28,000; joint Stock not to be liable to any Loss on account of Debts jointly so live, unless the said A. and B. or either of them, or the said C., shall be minded and desirous sooner to determine and put an end to the same, under the power herein-after for that purpose contained; and that the said A. shall and will advance and bring into the said trade and business so agreed to be carried on in partnership between the said A., B., and C., monies and effects properly belonging thereto, to the amount of £10,500, being equivalent to the share agreed to be accepted, taken, and enjoyed by the said A. on admission of the said B. as aforesaid; and that he the said B. shall and will advance and bring into the said trade or business so agreed to be carried on in partnership between the said A., B., and C., in monies and effects as aforesaid, the amount of £12,250, being equivalent to the share to be enjoyed by the said B. on such admission as aforesaid, but the present stock and effects in trade of the said A. aud B., and the fixtures in and about the messuages, tenements, warehouses, and premises situate in Street aforesaid, wherein the said trade or business hath been carried on by the said A. and B., with the tenant-right, term, and interest of them the said A. and B. of and in the said messuages, tenements, warehouses, valuation to be made thereof respectively, and in proportion to the rights and premises, to be considered and taken according to the amount of a and interests therein of the said A. and B. respectively, as a part of the effects so to be by them brought; and that the said C. shall and will advance and bring into the said trade or business monies to the amount of £5,250, making with the said other monies and effects to be so brought in as aforesaid a capital amounting to £28,000, which it is agreed shall be the capital joint stock of the said partners, parties to these presents, at the commencement of their said partnership; but nevertheless such joint stock is not to be liable to any loss or diminution on account of any debts that may be owing to the said A. and B. previous to the said 1st day of August last, but the whole of such loss is to be borne by the said A. and B., and that the said joint stock and the increase thereof, and all gains and profits which shall arise and be made by the said joint trade and business (subject as herein-after is mentioned) shall be from time to time during the said partnership between the said A., B., and C., continued and employed in the said partnership, trade, or business, to the greatest advantage thereof; and that neither of the said parties shall employ any of the monies, goods, or effects belonging to the said partnership (except as herein-after mentioned) nor engage the credit thereof in any matter or thing, but upon the joint and only account and for the sole use and benefit of the said partnership, trade, or business; nor shall either of the said copartners, during the said partnership so agreed upon between the said A., B., and C., solely by or for himself, or deal in any other jointly for or with any other person or persons, trade or deal in any trade or business whatsoever, but only upon the account and for the sole use, benefit, and advantage of them the said partners; nor shall any or either of the said partners buy any goods, wares, or merchandizes, nor underwrite any policy of insurance, nor in any manner engage the credit of the said copartnership contrary to and against the will and consent of the others or other of them, signified in writing under their and his hands and hand; and that in case any or either of the said parties shall so trade, act, or deal contrary to this agreement, then all benefit and advantage which shall arise or be made by such trading or dealing shall go and be put to the capital or stock of the said partnership, and be considered and taken as part thereof; and all loss and damage that shall come or happen thereon or thereby, shall be sustained and borne by such of the said parties only as shall so trade or deal contrary to this agreement: And it is hereby further mutually covenanted, declared, and agreed by and between the said parties to these presents, that the said partnership, trade, or business between the said A., B., and C., shall be owing to former Partners previous to Money to be employed in Partnership Concern only; ; Partners not to but for the sole Use of Partnership Business; Partners not to engage the Credit Trade; Partners not to buy Goods, &c. nor engage the Credit of Part nership contrary to the Consent of the others, signified in Writing; and if so, then the Advantage of such Dealing to go to Capital Stock; Loss to be borne by Partner only so trading; 13 |