§ 225. Same subject.-Aside from agreements to become or remain partners, there are some cases relating to partnership in which specific performance may be had. The most common of these are those involving agreements to buy or sell shares upon death or other dissolution,59 but there are others.60 Agreements to submit disputed claims to arbitration are more difficult of specific enforcement, but not usually for reasons which are peculiar to partnership.61

2. Of Injunctions.

§ 226. In what cases granted.-Injunctions are frequently granted upon the application of one partner against his copartner, either before or pending or after a dissolution.

1. Before dissolution, and for the very purpose often of obviating the necessity for a dissolution, injunctions may be granted to prevent the commission by partners of acts inconsistent with the terms of their agreement or violating the rights of their copartners. Thus, one partner may be enjoined from obstructing or impeding the business; excluding another partner from his rightful share in the management of the business; interfering with the servants of the firm; removing the books or papers of the firm or excluding his copartner from access to them; using partnership property for individual purposes; engaging in a rival business; extending the partnership transactions beyond the limits agreed upon; publishing a notice of dissolution before the stipulated term has expired, and the like.62

2. Pending an application for a dissolution or for an accounting, injunction may be issued to restrain one partner from wrongfully interfering with, secreting or disposing of the property, creating new liabilities, and the like.63

3. After dissolution, one partner may be enjoined from wasting, injuring, disposing of or wrongfully dealing with the assets; from holding out the complainant as being still a partner; from continuing business in violation of his agreement; from using the old firm name in such a way as to render former partners liable, and the like.64

62 See Marble Co. V. Ripley (1870), 10 Wall. (U. S.) 339; Leavitt v. Windsor Land & Inv. Co. (1893), 4 C. C. A. 425, 54 Fed. 439; Pirtle v. Penn (1835), 3 Dana (Ky.) 247, 28 Am. Dec. 70, Mechem's Cas. 313, Gilm. Cas. 480; New v. Wright (1870), 44 Miss. 202, Mechem's Cas. 319; Katz v. Brewington (1889), 71 Md. 79, 20 Atl. 139, Mechem's Cas. 929, Gilm. Cas. 433; Van Keuren v. Trenton Mfg. Co. (1861), 13 N. J. Eq. 302;

Levine v. Michael (1883), 35 La.
Ann. 1121.

63 See Wilson v. Fitchter (1885), 11 N. J. Eq. 71; New v. Wright, supra.

64 See McGowan Co. v. McGowan (1872), 22 Ohio St. 370; Wilkinson v. Tilden (1881), 9 Fed. 683; Roberts v. McKee (1859), 29 Ga. 161; Shannon v. Wright (1883), 60 Md. 520, Mechem's Cas. 317, Gilm. Cas. 481; Fletcher v. Vandusen (1879), 52 Iowa 448.

3. Of Accounting and Dissolution.

§ 227. In what cases granted-Accounting without a dissolution. The most common ground for appealing to a court of equity is to secure an accounting to determine the interests of partners and creditors, to adjust mutual claims and demands, and to obtain a decree for payment and distribution. In such cases, as has been seen, the remedy at law is usually inadequate. The jurisdiction of a court of equity for these purposes is ample and its power to enforce its decrees complete.65 Its aid, however, must be sought before the claim has become stale, and the complainant's laches may bar relief.66

A demand for an accounting is usually coupled with a demand for dissolution, and because it not only encourages dissension and discontent among the partners to order frequent accounting, but also because it is ordinarily futile to order an accounting of a going business whose daily fluctuations may unsettle the account before it is concluded, it was formerly the rule that an accounting would not be granted where it would not be complete and final or unless it was coupled with a dissolution.67 The modern authorities have relaxed this rule to some extent, and there are cases in which an accounting alone may be granted. The most important of these, according to Mr. Justice Lindley,68 are three: 1. Where one partner has sought to withhold from his copartner the profit arising from some secret transaction. 2. Where the partnership is for a term of years still unexpired, and one partner has sought to exclude or expel his copartner or to drive him to a dissolution.69 3. Where the partnership has

65 See Bracken V. Kennedy (1842), 4 Ill. 558, Gilm. Cas. 470; Clark v. Gridley (1871), 41 Cal. 119; Denver v. Roane (1878), 99 U. S. 355, 25 L. ed. 476; Bruns v. Heise (1905), 101 Md. 163, 60 Atl. 604.

66 See Bell v. Hudson (1887), 73 Cal. 285, 14 Pac. 791, 2 Am. St. R. 791, and note (here the action was not brought until 25 years after the partner's death). Compare

Morrill v. Weeks (1899), 70 N. H. 178, 46 Atl. 32, where the court said that delay for a period less than that fixed by a statute of limitations would not bar relief.

67 See the elaborate discussion in Lord v. Hull (1904), 178 N. Y. 9, 70 N. E. 69, 102 Am. St. R. 484, Mechem's Cas. 920, Gilm. Cas. 472. 68 Lindley on Partnership (7th ed.) 537.

69 See Fairthorne V. Weston

proved a failure, and the partners are too numerous to be made parties to the action, and a limited account will result in justice to them all. To these may be added (1) under some circumstances doubtless, the case where the partnership agreements provide for periodical accountings, and (2) the case of accountings as to distinct transactions." 70

§ 228. In these cases, however, an accounting will not, except in pursuance of partnership agreements, be granted of an isolated portion of what has been dealt with as a complete and general whole.71 Moreover, "a court of equity will not take cognizance of an action for an accounting as a mere incident to the settlement of a solitary matter in dispute between partners, when it is not vital to either party or to the business, and a dissolution is not sought." 72

The effect of the illegality of the transaction in an action for accounting has already been referred to.78

The Uniform Partnership Act 74 gives the right to a "formal account" to any partner where he is wrongfully excluded from the partnership business or property by his copartners; where the right exists under the terms of any agreement; where his copartner may be charged as a trustee of profits or property; and "whenever other circumstances render it just and reasonable."

§ 229. Nature of remedy by accounting-What included. It is important to observe that this equitable action for an accounting, is not merely a process for calling one partner to account for something which he has received or had, or

(1844), 3 Hare 387, which is the case upon which this proposition of Justice Lindley was based. See, also, cases of accounting at the suit of excluded partners: McCabe v. Sinclair (1904), 66 N. J. Eq. 24, 58 Atl. 412; Sanger v. French (1898), 157 N. Y. 213, 51 N. E. 979; Reilly v. Woolbert (1916), 196 Ala. 191, 72 So. 10.

70 See Patterson v. Ware (1846), 10 Ala. 444.

71 See Davis v. Davis (1882), 60 Miss. 615.

72 Lord v. Hull, supra.

73 See ante, $ 46. See, also, Pfeuffer v. Maltby (1881), 54 Tex. 454, 38 Am. Rep. 631; Pennington v. Todd (1890), 47 N. J. Eq. 569, 21 Atl. R. 297, 24 Am. St. R. 419. 74 Sec. 22.

to render an account; it is an action for adjustment, for contribution to losses, for settlement of affairs, and the like, and may result in a decree against a partner to pay something even though he had never received anything on account of the partnership.75

Its use to compel an accounting by a partner for money or property received by him, on alleged partnership account, is, however, doubtless the most common. Familiar instances are demands for secret profits,76 for the profits of competing undertakings, to compel the recognition of a partnership interest in property bought or acquired,78 to compel an adjustment for partnership property, money or credits taken or disposed of by a partner,79 and the like. So, a partner wrongly excluded by his copartner before or on dissolution, may avail himself of this remedy to secure a recognition of his rights and compensation for what has been appropriated.80 It is also, as has been seen,81 usually the remedy available against a partner for breaches of duty and violations of partnership agreements, from which the partnership, as distinct from a particular partner, is the sufferer.82

75 See Spear v. Newell (1841), 13 Vt. 288, Mechem's Cas. 311.

76 See Hodge v. Twitchell (1885), 33 Minn. 389, 23 N. W. 547, Mechem's Cas. 862; Mitchell v. Reed (1874), 61 N. Y. 123, 19 Am. Rep. 252, Mechem's Cas. 864; Tebbetts v. Dearborn (1883), 74 Me. 392, Mechem's Cas. 871; Jones v. Dexter (1881), 130 Mass. 380, 30 Am. Rep. 459, Mechem's Cas. 873; Bloom v. Lofgren (1896), 64 Minn. 1, 65 N. W. 960, Burd. Cas. 501.

77 See Latta v. Kilbourn (1893), 150 U. S. 524, 37 L. ed. 1169, Mechem's Cas. 260, Burd. Cas. 503.

78 See Metcalfe V. Bradshaw (1893), 145 Ill. 124, 33 N. E. 1116, 36 Am. St. R. 478, Mechem's Cas. 875.

79 See Folsom v. Marlette (1897), 23 Nev. 459, 49 Pac. 39, Gilm. Cas. 486.

80 See Pirtle v. Penn (1835), 3 Dana (Ky.) 247, 28 Am. Dec. 70, Mechem's Cas. 313, Gilm. Cas. 480; Moore v. Rawson (1904), 185 Mass. 264, 70 N. E. 64, Mechem's Cas. 1089, 199 Mass. 493, 85 N. E. 586; Karrick v. Hannaman (1897), 168 U. S. 328, 42 L. ed. 484, 18 Sup. Ct. 135; Pearce v. Ham (1885), 113 U. S. 585, 28 L. ed. 1067, 5 Sup. Ct. 676.

81 See ante, § 214.

82 See Miller v. Freeman (1900), 111 Ga. 654, 36 S. E. 961, 51 L. R. A. 504, Mechem's Cas. 894; Childers v. Neely (1899), 47 W. Va. 70, 34 S. E. 828, 49 L. R. A. 468.