the partners; though the continuing partnership will usually be deemed to be at will merely and not renewed for a similar term, and therefore only such of the old articles will be deemed to be in force as are consistent with such a partnership. The original articles may also survive changes in the persons comprising the firm, and be continued by their adoption by the new firm. The Uniform Partnership Act contains similar provisions. It declares, "(1) When a partnership for a fixed term or particular undertaking is continued after the termination of such term or particular undertaking without any express agreement, the rights and duties of the partners remain the same as they were at such termination, so far as is consistent with a partnership at will. "(2) A continuation of the business by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation of the partnership affairs, is prima facie evidence of a continuation of the partnership." § 118. Of the usual clauses in partnership articles.-The subjects most commonly covered by the partnership articles are: (1) the nature, name and place of the business; (2) the com 8 See Metcalfe V. Bradshaw (1893), 145 Ill. 124, 33 N. E. 1116, 36 Am. St. R. 478, Mechem's Cas. 875; United States Bank v. Binney (1828), 5 Mason (U. S. C. C.) 176; Sangston v. Hack (1879), 52 Md. 173; Bradley v. Chamberlin (1844), 16 Vt. 613; Mifflin v. Smith (1827), 17 Serg. & R. (Pa.) 165; Stephens v. Orman (1862), 10 Fla. 9. Thus, a provision for doing certain acts within a named period before the termination of the partnership, and which therefore contemplate a known date for the termination, will usually be inapplicable to the subsequent partnership at will. Neilson v. Mossend Iron Co. (1886), 11 App. Cas. 298; but a provision respecting acts to be done within a certain time after the termination of the partnership, may apply to the partnership at will as well as to the original one: Daw v. Herring [1892], 1 Ch. 284. See, also, Woods v. Lamb (1866), 35 L. J. Ch. 309; Hogg v. Hogg (1877), 35 L. T. Rep. N. S. 792. The continuing partnership, it is said in Jurgens v. Ittmann (1895), 47 La. Ann. 367, 16 So. 952, is "one not resting on consent from day to day, and by force of such daily reiterated consent, but a continuing partnership subject to termination only after notice and under the rules of law relating to the dissolution of partnerships. Until formally or legally dissolved it continues as a partnership." 9 Section 23. mencement and duration of the partnership; (3) the capital and property of the firm and how and by whom contributed; (4) the share of each in the profits and losses; (5) the conduct and powers of the partners; and (6) the dissolution and winding up of the firm. Many other subjects are introduced in special cases. A form of articles which may prove to be suggestive is printed in an appendix. § 119. Of the enforcement of the provisions-Arbitration— Specific performance.-It is customary to include provisions for arbitration in case of disputes, and for fixing the value of shares by that method in case of the retirement of a partner. Provisions are also frequently inserted for making offers to buy or sell in case of dissolution; for giving indemnity against debts to the retiring partner; for taking in new partners; for permitting the representatives of a deceased partner to be admitted; for expelling a partner; and the like. Many of these provisions can have only a negative effect, for, as will be more fully seen hereafter, 10 it is well settled that agreements to become partners, agreements to continue a partnership for a definite time, agreements to submit disputed matters to arbitration, and agreements to admit new partners, will not ordinarily be specifically enforced by the courts, but the parties will be left to such remedy as they may find, if any, in an action for the breach of the agreement. The execution of formal instruments clearly provided for may sometimes be specifically enforced, including even the execution of partnership articles, where that is necessary to confer upon one party a right to which he is entitled, even though the partnership thereby created may be immediately dissolved.11 II. OF THE FIRM NAME. § 120. Of the need of a firm name. In the absence of a statute requiring it, a firm name is a customary but not a necessary 10 See post, § 222. 11 See England v. Curling (1844), 8 Beavan (Eng. Ch.) 129; Buck v. Smith (1874), 29 Mich. 166, 18 Am. Rep. 84, Mechem's Cas. 322; Som erby v. Buntin (1875), 118 Mass. 279, 19 Am. Rep. 459, Mechem's Cas. 326; Tobey v. Bristol County, 3 Story (U. S. C. Ct.) 819. incident of a partnership. As has been seen, the partnership is not, in legal contemplation, a distinct and separate entity, but merely a collection of individuals with whom, for most purposes, the law deals as such. A firm name, therefore, is not indispensable,12 but it is a matter of convenience in identifying and ascertaining the individuals interested; and when a firm name has been adopted, it ought regularly to be used in the partnership transactions. Nevertheless, as will be seen, the partners may acquire rights and incur liabilities even though the firm name was not used.18 § 121. What name may be adopted. In some states, as, for example, in New York, statutes have been enacted forbidding the use of the name of a person not actually interested in the firm, or the use of the term "& Co." unless it represents an actual partner.14 Other statutes forbid the use of assumed or fictitious names unless some prescribed notice is given or public record is made showing who are the persons represented by the name.15 But where no statute prevents, the partners 12 See Meriden Nat. Bank v. Gal- 13 See post, § 121; § 296, et seq. presumption that it represents a partner. Robinson v. Magarity (1862), 28 Ill. 423; Brennan v. Pardridge (1887), 67 Mich. 449, 35 N. W. 85. As to whether the firm name is such as to import a partnership or a corporation, see Birmingham Loan Co. v. First Nat. Bank (1893), 100 Ala. 249, 46 Am. St. Rep. 45; Clark v. Jones (1888), 87 Ala. 474, 6 So. 362; Seymour v. Harrow Co. (1886), 81 Ala. 250, 1 So. 45. 15 As to such statutes and their effect, see Castle v. Graham (1903), 87 N. Y. App. Div. 97, 84 N. Y. 120, aff'd 180 N. Y. 553, 73 N. E. 1120; Pendleton v. Cline (1890), 85 Cal. 142, 24 Pac. 659; Walker v. Stimmel (1906), 15 N. Dak. 484, 107 N. W. 1081; Guiterman V. Wishon (1898), 21 Mont. 458, 54 Pac. 566; Czatt v. Case (1899), 61 Ohio St. may adopt any firm name they choose, so long as it does not interfere with the rights of others. They may thus use the name of a stranger, of a single partner or of a portion of the partners, or they may adopt a wholly fictitious name. They may have one name for one branch of their business and a different one for another branch; or one name for the business at one place and a different one for the business at another place.16 They may also acquire a name by usage, even though they have another fixed by the agreement of the partners. § 122. Use of different name.-And though they may have a regular firm name, they may be bound by the use, in a single transaction, of some other name.17 They may change or add to 392, 55 N. E. 1004; Cashin v. Pliter (1912), 168 Mich. 386, 134 N. W. 482, Ann. Cas. 1913 C, 697; Bolen v. Ligett (1916), 49 Okla. 788, 154 Pac. 547, L. R. A. 1916 D, 352; Elgin Jewelry Co. v. Wilson (1908), 42 Colo. 270, 93 Pac. 1107; Carland v. Heckler (1916), 147 C. C. A. 390, 233 Fed. 504; Missaukee Farm Co. v. Ferris (1916), 193 Mich. 286, 159 N. W. 490. For a somewhat similar statute, see National Bank v. Cringan, supra; Yale v. Taylor Mfg. Co. (1886), 63 Miss. 598. 16 See West V. Valley Bank (1856), 6 Ohio St. 168, Burd. Cas. 132; Messner v. Lewis (1857), 20 Tex. 221, Burd. Cas. 133. 17 An obligation under seal executed by all the members of a firm, in and for its business and for its benefit, binds the firm although the firm name is not mentioned, and although it appears upon its face to be simply the obligation of the partners contracted in their individual names. Berkshire Woolen Co. v. Juillard (1879), 75 N. Y. 535, 31 Am. Rep. 489, Mechem's Cas. 389. To same effect: Dreyfus v. Union Nat. Bank (1896), 164 Ill. 83, 45 N. E. 408, Burd. Cas. 139; Rouse v. Wallace (1897), 10 Colo. App. 93, 50 Pac. 366. A firm is bound by an acceptance in an agent's name which it has adopted as a firm name by an agreement of the partners to do business under the name of such agent, where it does not appear that the agent was doing business also on his own account; but if that fact appears, it must be shown that he accepted the bill on account of the partnership in order to bind it. Bank of Rochester V. Monteath (1845), 1 Denio (N. Y.) 402, 43 Am. Dec. 681. See, also, Le Roy v. Johnson (1829), 2 Peters (U. S.) 186; Ripley v. Colby (1851), 23 N. H. 438; Getchell v. Foster (1870), 106 Mass. 42; Uhler v. Browning (1859), 28 N. J. L. 79; Barcroft v. Haworth (1870), 29 Iowa 462. See, also, post, §§ 296-298. A sealed note made to partners in their individual names may be endorsed by them in the firm name. Mick v. Howard (1848), 1 Ind. 250, Burd. Cas. 131. The firm property may be trans the firm name at any time. They may acquire rights in the firm name and transfer them in the individual names of the partners, and vice versa. Whatever the name used, it may be shown by parol evidence who the persons were who were represented by it. § 123. What may be done in the firm name-Executing contracts, bonds, deeds-Actions at law. As a general rule, all simple contracts, written or unwritten, negotiable or non-negotiable, whether creating rights or imposing obligations, may be made or taken in the firm name; 18 and, as will be seen,19 one partner has usually implied authority to bind the firm by contracts made in the firm name for partnership purposes. But, as will also be seen,20 one partner has ordinarily no implied authority to bind the firm by executing in the firm name bonds, deeds or other instruments under seal; and, in general, deeds of conveyance of real estate cannot, by the older authorities, at least, be made either by or to the firm in the firm name. Such conveyances will, however, usually operate to convey an equitable interest which may be enforced in a court of chancery; and where a conveyance of real estate is made to a firm in the name of the firm which contains the full name of one or more of the partners, a legal title will generally be held to vest in those partners whose names appear, and equity will charge them as trustees for all.21 The tendency of the later cases, as will ferred, though each partner makes a separate bill of sale of all his interest in his own name, where all these bills of sale are then delivered together to the grantee. Twin City Brief Printing Co. v. Review Pub. Co. (1918), 139 Minn, 358, 166 N. W. 413, L. R. A. 1918 D, 154. 18 A chattel mortgage may be taken in the firm name. Hendren v. Wing (1895), 60 Ark. 561, 31 S. W. 149, 46 Am. St. R. 218, Mechem's Cas. 797, Burd. Cas. 161, Gilm. Cas. 189. As to real estate mortgage, see Woodward v. Mc Adam (1894), 101 Cal. 438, 35 Pac. 20 See post, §§ 263, 264. 21 A deed to John Smith & Co. operates to vest the entire legal title in John Smith alone. Winter v. Stock (1866), 29 Cal. 407, 89 Am. Dec. 57; Moreau V. Saffarans (1856), 3 Sneed (35 Tenn.) 595, 67 Am. Dec. 582. A mortgage of real estate given to "Farnham & Lovejoy, of the county of Hennepin, |