right of one partner to dissolve the partnership "is a right inseparably incident to every partnership. There can be no such thing as an indissoluble partnership. Every partner has an indefeasible right to dissolve the partnership, as to all future contracts, by publishing his own volition to that effect; and after such publication the other members of the firm have no capacity to bind him by any contract. Even where partners covenant with each other that the partnership shall continue seven years, either partner may dissolve it the next day by proclaiming his determination for that purpose; the only consequence being that he thereby subjects himself to a claim for damages for a breach of his covenant. The power given by one partner to another to make joint contracts for them both is not only a revocable power, but a man can do no act to divest himself of the capacity to revoke it." In another case,22 in which the foregoing language was approved, the court said: "There may be cases in which equity would enjoin a dissolution for a time, when the circumstances were such as to make it specially injurious; but no question of equitable restraint arises here. When one partner becomes dissatisfied there is commonly no legal policy to be subserved by compelling a continuance of the relation, and the fact that a contract will be broken by the dissolution is no argument against the right to dissolve. Most contracts may be broken at pleasure, subject, however, to responsibility in damages. And that responsibility would exist in breaking a contract of partnership as in other cases." § 356. In the Supreme Court of the United States, where both of the foregoing cases were cited, it was said: "A court of equity, doubtless, will not assist the partner breaking his contract to procure a dissolution of the partnership, be Johns. (N. Y.) 513, 10 Am. Dec. 286. To same effect: Solomon v. Kirkwood (1884), 55 Mich. 256, 21 N. W. 336, Mechem's Cas. 455; Burd. Cas. 554, Gilm. Cas. 589; Mason v. Connell (1836), 1 Whart. (Pa.) 381; Slemmer's Appeal (1868), 58 Pa. St. 169, 98 Am. Dec. 255; Karrick v. Hannaman (1897), 168 U. S. 328, 18 Sup. Ct. 135, 42 L. ed. 484; Lapenta v. Lettieri (1899), 72 Conn. 377, 44 Atl. 730, 77 Am. St. R. 315. 22 Solomon v. Kirkwood, supra. cause, upon familiar principles, a partner who has not fully and fairly performed the partnership agreement on his part has no standing in a court of equity to enforce any rights under the agreement. But, generally speaking, neither will it interfere at the suit of the other partner to prevent the dissolution, because, while it may compel the execution of articles of partnership so as to put the parties in the same position as if the articles had been executed as agreed, it will seldom, if ever, specifically compel subsequent performance of the contract by either party, the contract of partnership being of an essentially personal character." 23 §357. Same subject.-But this right of one partner to dissolve at will a partnership created for a fixed period has been vigorously denied. Thus, Mr. Justice Story has said: "Whenever a stipulation is positively made that the partnership shall endure for a fixed period, or for a particular adventure or voyage, it would seem to be at once inequitable and injurious to permit any partner, at his mere pleasure, to violate his engagement and thereby to jeopard, if not sacrifice, the whole objects of the partnership; for the success of the whole undertaking may depend upon the due accomplishment of the adventure or voyage, or the entire time be required to put the partnership into beneficial operation. It is no answer to say that such a violation of the engagement may entitle the injured partners to compensation in damages; for, independently of the delay and uncertainty attendant upon any such mode of redress, it is obvious that the remedy may be, nay, must be, in many cases utterly inadequate and unsatisfactory. If there be any real and just ground for the abandonment of the partnership, a court of equity is competent to administer suitable redress. But that is exceedingly different from the right of the partner, sua sponte, from mere caprice, or at his own pleasure, to dissolve the partnership.' ,, 24 These views, while recognized in the English courts and some of the States,25 have not been generally approved in this country. 23 Karrick v. Hannaman, supra. 24 Story on Partnership, § 275. 25 One of the strongest cases on this side of the question in the §358. Same subject.-Even, however, if it be conceded that the power to dissolve exists, its exercise by one who is confessedly proceeding in flat violation of his contract is not likely to receive much encouragement or aid in a court of equity; and the partner who attempts it may be left to his own resources and such aid as a court of law will give him. The unsettled condition of the law upon the subject, therefore in some States, and the fact that a dissolution, conceding the right to make it, may often be impracticable of effect without judicial assistance, render it usually desirable, if not necessary, to have recourse to a court of equity when it is sought to enforce the dissolution of a partnership created for a fixed period. The reasons which will justify this proceeding will be discussed in later sections. § 359. Method of dissolving by act of partner.-No particular method of dissolving a partnership by the act of a partner is necessary. Any unequivocal act which shows his determination not to continue the relationship any longer will suffice. A voluntary sale or transfer of his interest by one partner usually works a dissolution.26 In the absence of such a sale, an unconditional notice of the dissolution given by the partner to his partners is sufficient as between themselves. Even where the partnership was created by written instrument, or by instrument under seal, a dissolution by parol is usually held sufficient.27 The Uniform Partnership Act uses the phrase "by the express will" of any partner at any time.28 United States is, doubtless, Hannaman v. Karrick (1893), 9 Utah 236, 33 Pac. 1039 (reversed as to this point in 168 U. S. 328, 18 Sup. Ct. 135, 42 L. ed. 484), which relied chiefly upon this position of Story, and Lindley; Ferrero v. Buhlmeyer (1867), 34 How. (N. Y.) Pr. 33; Pearpoint v. Graham (1818), 4 Wash. C. C. 232; Cash v. Earnshaw (1872), 66 Ill. 402; Van Kuren v. Trenton Co. (1861), 13 N. J. Eq. 302; Peacock v. Peacock (1809), 16 Ves. 49. See, also, McMahon v. Mc- 27 See Green v. State Bank (1890), 78 Tex. 2; Swift v. Ward (1890), 80 Iowa 700, 45 N. W. 1044, 11 L. R. A. 302. 28 Sec. 31 (2). II. DISSOLUTION BY HAPPENING OF EVENTS. § 360. What here included.-In a number of cases, partnership is deemed to come to an end upon the mere happening of some event, the existence of which ipso facto makes the further continuance of the relation impossible, inconsistent, undesirable or illegal. What the chief of these events are will be here considered. § 361. Death of a partner.-Death of one partner operates to instantly dissolve an ordinary partnership, and this is usually held to be true even though the partnership articles provide for a continuance of the partnership by his executors or others, this being deemed to be really, if acted upon, the creation of a new partnership rather than the mere continuation of the old.29 In the case of "joint stock companies" or partnerships with transferable shares the rule is often otherwise.30 Where there were more than two partners, the death of one not only dissolves the partnership as to him, but it dissolves the partnership between the survivors also.31 It is, of course, 29 See Vincent v. Martin (1885), 79 Ala. 540; Exchange Bank v. Tracy (1883), 77 Mo. 594; McGrath v. Cowen (1898), 57 Ohio St. 385, 49 N. E. 338; Schmidt v. Archer (1887), 113 Ind. 365, 14 N. E. 543; Stewart v. Robinson (1889), 115 N. Y. 328, 22 N. E. 160, 163, 5 L. R. A. 410. It is undoubtedly true, however, that statements are frequently to be found to the effect that such provisions may operate to prevent dissolution. See Gratz v. Bayard (1824), 11 Serg. & R. (Pa.) 41; Laughlin v. Lorenz (1864), 48 Pa. 275, 86 Am. Dec. 592; Rand v. Wright (1894), 141 Ind. 226, 39 N. E. 447, Burd. Cas. 266; Schmidt v. Archer (1887), 113 Ind. 365, 14 N. E. 543. It is partly a matter of nomen clature and partly a question of what one is talking about. A business may in fact be practically continuous, though the personnel of its conductors may change. The particular group of persons who composed the partnership is unavoidably changed when one dies, no matter how automatically the group may be reconstituted afterward. See Mattison v. Farnham (1890), 44 Minn. 95, 46 N. W. 347. 30 See Willis v. Chapman (1896), 68 Vt. 459, 35 Atl. 459; McNeish v. Oat Co. (1884), 57 Vt. 316; Carter v. McClure (1897), 98 Tenn. 109, 38 S. W. 585, 60 Am. St. R. 842, 36 L. R. A. 282; Tyrrell v. Washburn (1863), 88 Mass. (6 Allen) 466. 31 See Hoard v. Clum (1883), 31 Minn. 186, 17 N. W. 275, Mechem's Cas. 444; Marlett V. Jackman possible for the survivors to immediately form a new partnership among themselves, but it is in law and in fact a new one. No liability would ordinarily result as between the partners because the partnership was dissolved by death before the expiration of the agreed term. The Uniform Partnership Act recognizes this cause of dissolution.32 § 362. Bankruptcy of a partner.-Bankruptcy of one partner -by which is meant the public or statutory condition as distinguished from mere insolvency-operates to dissolve the partnership.33 Under the Uniform Partnership Act, the partnership is dissolved by the bankruptcy of any partner or of the partnership.34 As in the case of death, the bankruptcy of a partner which dissolves the partnership as to him would dissolve it also as the remaining partners if there were several.35 §363. Assignment or seizure of partner's interest.-Except in the case of partnerships having transferable shares, like joint stock companies and mining partnerships, the same result, i. e., dissolution, has generally been thought to ensue from a partner's assignment of all of his property-including his partnership interests for the benefit of his creditors; or from the seizure and sale of his interest at the suit of his individual creditors; but the Uniform Partnership Act has changed this latter rule,37 (1861), 85 Mass. (3 Allen) 287, Ames' Cas. 551, Burd. Cas. 547. 32 Sec. 31 (4). 33 See Eustis v. Bolles (1888), 146 Mass. 413, 16 N. E. 286, 4 Am. St. R. 327, Mechem's Cas. 965, Gilm. Cas. 603; Siegel v. Chidsey (1857), 28 Pa. St. 279, 70 Am. Dec. 124; Heyman v. Heyman (1904), 210 Ill. 524, 71 N. E. 591. 34 Sec. 31 (5). 35 See Lewis v. United States (1875), 92 U. S. 618, 23 L. ed. 513. 36 See Carter v. Roland (1880), 36 53 Tex. 540; Wilson v. Waugh (1882), 101 Pa. 233, Mechem's Cas. 546; Ogden v. Arnot (1883), 29 Hun (N. Y.) 146, Mechem's Cas. 996, Burd. Cas. 461; Morrison v. Blodgett (1836), 8 N. H. 238, 29 Am. Dec. 653. 37 See Sec. 27, quoted in note 42. Sec. 28 (1), which provides for a charging order against a partner's share at the suit of his separate creditor (see ante, §§ 148, 149), may be so administered as to pay out the creditor without a dissolution; while |