§ 42. For any lawful business. It is the general rule, analogous to that of agency, that a partnership may be created for the purpose of carrying on any lawful business, and that whatever business the individual partners might lawfully carry on if acting separately and in their own behalf, they may lawfully conduct in partnership. Thus, there may be a partnership for carrying on not only every lawful kind of trade or commerce, but also for farming, mining, lumbering, manufacturing, transportation, and the like. Professional occupations like that of the lawyer, physician, dentist and architect may also be carried on in partnership, and there may be a partnership for buying and selling land.1

1 Chester v. Dickerson (1873), 54 N. Y. 1, 13 Am. Rep. 550, Mechem 's Cas. 38, Gilm. Cas. 136; Flower v. Barnekoff (1890), 20 Oreg. 137, 25 Pac. 370, 11 L. R. A. 149; Bates v. Babcock (1892), 95 Cal. 479, 30 Pac. 605, 29 Am. St. R. 133, 16 L. R. A. 745.

To buy and sell oil leases, options, etc.: Ewers v. Montgomery (1910), 68 W. Va. 453, 69 S. E. 907; Bird v. Wilcox (1919), 104 Kan. 799, 180 Pac. 774.

So, of coal options: McKinley v. Lynch (1905), 58 W. Va. 44, 51 S. E. 4.

To carry on farming operations: Wilson v. Todhunter (1918) — Ark. 207 S. W. 221.

"The business of breeding, training, and racing horses for purses is legal", and a partnership may lawfully be created for that purpose. Central Trust Co. v. Respass (1902), 112 Ky. 606, 66 S. W. 421, 23 Ky. L. R. 1905, 99 Am. St. R. 317, 56 L. R. A. 479, Mechem's Cas. 728, Gilm. Cas. 139; but not for betting on horse races or "book making.”— Id.

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§ 43. Same subject-Series of acts-Continuous businessSingle adventure.-Partnerships are undoubtedly usually organized for the purpose of carrying on a more or less permanent and continuing trade or business; but it is well settled that there may be a partnership for a single piece of business or for a particular venture. The early forms of partnership were frequently such. It must, however, be undertaken as a business, to distinguish it from the case, for example, referred to in a previous section, wherein two persons, not otherwise partners and not intending to embark upon the business of buying and selling land, unite to buy a particular parcel of land to hold for an advance in price. Thus, for example, an association to purchase a tract of land to be held and disposed of as a unit in one transaction might not constitute a partnership, while an

2 See Kayser v. Maugham (1885), 8 Colo. 232, 6 Pac. 803 (contract to unite to sell a particular mine at a profit, called a partnership); Shackelford v. Williams (1913), 182 Ala. 87, 62 So. 54 (same in substance); Yeoman v. Lasley (1883), 40 Ohio St. 190 (contract to buy a particular farm supposed to contain coal, to be resold at a profit, called a partnership); Hulett v. Fairbanks (1883), 40 Ohio St. 233 (same in substance); Jones v. Davies (1899), 60 Kan. 309, 56 Pac. 484, 72 Am. St. R. 354 (same in substance); Spencer v. Jones (1899), 92 Tex. 516, 50 S. W. 118, 71 Am. St. R. 870 (same as last); Canada v. Barksdale (1881), 76 Va. 899 (same as last); Mitchell v. Tonkin (1905), 109 N. Y. App. Div. 165, 95 N. Y. S. 669 (called a partnership); Williamson v. Nigh (1906), 58 W. Va. 629, 53 S. E. 124; Bates v. Babcock, supra; Flower v. Barnekoff, supra.

But see Jones v. Gould (1913), 209 N. Y. 419, 103 N. E. 720 (similar contract, said not to be part

nership but joint venture); Clark v. Sidway (1891), 142 U. S. 682, 12 S. Ct. 327, 35 L. ed. 1157 (said to be tenancy in common, not partnership); Gottschalk V. Smith (1895), 156 Ill. 377, 40 N. E. 937 (not a partnership); Hurley v. Walton (1872), 63 Ill. 260 (single fishing venture, not a partnership); Williams v. Gillies (1878), 75 N. Y. 197 (purchase of land on speculation not a commercial partnership). Cases of limited interests in particular transactions held not partnerships: Butler v. Union Trust Co. (1918), 178 Cal. 195, 192 Pac. 601; Jackson v. Hooper (1909), 76 N. J. Eq. 185, 74 Atl. 130; Causten V. Barnette (1908), 49 Wash. 659, 96 Pac. 225; Stundon v. Dahlenberg (1914), 184 Mo. App. 381, 171 S. W. 37; Sutton v. Missouri, etc., Ry. Co. (1919), 104 Kan. 282, 178 Pac. 418.

Co-tenants rather than partners: Magee v. Magee (1919),· Mass. 123 N. E. 673.

3 See ante, § 14.

association to buy such a tract, subdivide it into many lots, employ surveyors, engineers and brokers, and enter upon the more or less protracted business of selling out the various lots at retail, might easily be held to be a partnership.

§ 44. Not for purposes unlawful or opposed to public policy. -But, as in the case of agency, there are many purposes for which the relation cannot lawfully be created. Thus, a trust personal to one individual cannot be executed by a partnership; public offices cannot be held in partnership; and a partnership cannot lawfully be created for the doing of anything which is in itself, or which directly and immediately tends to promote acts which are, illegal, immoral or opposed to public policy. Partnerships, therefore, for the purpose of gambling or of carrying on a gambling establishment; to speculate in "futures"; to "corner" the market, or to stifle or prevent competition; to carry on a forbidden occupation; to hinder or delay creditors; to carry on trade with belligerents in time of war; to carry on trade in violation of the navigation laws; to secure contracts from government or public officials by improper means; to corrupt public or private agents; to carry on business without a license where that is necessary; and the like, are ilegal.5

4 So held in Winstanley V. Gleyre (1893), 146 Ill. 27, 34 N. E. 628.

5 See Woodworth V. Bennett (1870), 43 N. Y. 273, 3 Am. Rep. 706, Mechem's Cas. 43; Craft v. McConoughy (1875), 79 Ill. 346, 22 Am. Rep. 171, Mechem's Cas. 48; Central Trust Co. v. Respass (1902), 112 Ky. 606, 66 S. W. 421, 23 Ky. L. R. 1905, 99 Am. St. R. 317, 56 L. R. A. 479, Mechem's Cas. 728, Gilm. Cas. 139; Smith v. Richmond (1902), 114 Ky. 303, 70 S. W. 846, 102 Am. St. R. 283, 24 Ky. L. R. 1117; McMullen v. Hoffman (1898), 174 U. S. 639, 19 Sup. Ct. 839, 43 L. ed. 1117; Gaston v.

Drake (1879), 14 Nev. 175, 33 Am. Rep. 548; Davis v. Gelhaus (1886), 44 Ohio St. 69, 4 N. E. 593; Hunter v. Pfeiffer (1886), 108 Ind. 197, 9 N. E. 124; Watson V. Fletcher (1850), 7 Gratt. (Va.) 1; Watson v. Murray (1872), 23 N. J. Eq. 257; King v. Winants (1874), 71 N. C. 469, 17 Am. Rep. 11; Citizen's Bank v. Mitchell (1909), 24 Okla. 488, 103 Pac. 720, 20 Ann. Cas. 371; Kennedy v. Lonabaugh (1911), 19 Wyo. 352, 117 Pac. 1079; Jackson V. Akron Brick Ass'n (1895), 53 Ohio St. 303, 41 N. E. 257, 53 Am. St. R. 638, 35 L. R. A. 287; Patty-Joiner Co. v. City Bank (1897), 15 Tex. Civ. App. 475, 41

§ 45. Purposes illegal in part.-A partnership may be organized for two or more purposes, part of which are lawful and part of which are unlawful, or it may be created for a lawful purpose, and yet one or more of its undertakings may be illegal, or it may seek to accomplish lawful ends by unlawful means. In such cases the lawful part, if it can be separated from the residue, will not be affected by the illegality; if it cannot be separated, the whole must be regarded as unlawful.6

If the partnership be legal, but a certain transaction is illegal, and the latter can be segregated, it alone will be affected; and the rights of partners who were not implicated will not be destroyed."

§ 46. Effect of illegality.-Courts will not enforce contracts having for their purpose, or tending directly to promote, illegal objects. The members of an illegal partnership cannot sue to enforce any contract tainted by the illegality, but actions may be brought against the members of such a partnership by a person who did not participate in the illegality. As between themselves, the law usually leaves the members of an illegal partnership where it finds them, refusing to aid either party. Courts will not, therefore, enforce contribution or compel an accounting of their illegal affairs; though if the unlawful transaction is completely ended and there remains in the hands of

S. W. 173, Burd. Cas. 484; Wright v. Cudahy (1897), 168 Ill. 86, 48 N. E. 39; Willson v. Morse (1902), 117 Iowa 581, 91 N. W. 823.

6 See Dunham v. Presby (1876), 120 Mass. 285; Anderson v. Powell (1876), 44 Iowa, 20; Foyer v. Harken (1909), 142, Iowa 708, 121 N. W. 526, 23 L. R. A. (N. S.) 477; Wishek v. Hammond (1900), 10 N. Dak. 72, 84 N. W. 587.

In Estate of Ryan (1914), 157 Wis. 576, 147 N. W. 993, the court says that, as between the partners, "a claim for contribution will not be rejected unless the partnership is an illegal partnership, or unless the act relied on as the basis of

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the claim was not only illegal, but the illegality was such that it must or ought to have been known, to the partner seeking contribution, to have been illegal when it was committed." See § 188, post; Thwaites v. Coulthwaite [1896], 1 Ch. 496; Keen v. Price [1914], 2 Ch. 98.

8 See Central Trust Co. v. Respass (1902), 112 Ky. 606, 66 S. W. 421, 23 Ky. L. R. 1905, 99 Am. St. R. 317, 56 L. R. A. 479, Mechem's Cas. 728; McMullen v. Hoffman (1898), 174 U. S. 639, 19 Sup. Ct. 839, 43 L. ed. 1117; Hunter v. Pfeiffer (1886), 108 Ind. 197, 9 N. E. 124; Gould v. Kendall (1884), 15 Neb. 549, 19 N.

one of them property or money which, but for the past illegality, would belong to both of them, or if they have themselves wound up the affairs and agreed upon the account, it is held in some cases that the courts will then compel the partner having the property or funds in his possession to pay over to his partner the latter's share, even though such property or funds were acquired in unlawful dealings. The weight of authority, however, denies relief in these cases as well as in the others.1 10 The true test seems to be whether to maintain the action requires the court to enforce or carry out the illegal contract. If it will so require, the court will decline to interfere,-not because of any consideration for the defendant, but because the court will not lend its aid or be a party to the illegal transaction.11

The taint of illegality, however, does not follow property or money forever, and where even ill-gotten gains have been invested in a new and lawful enterprise the proceeds of it may be recovered.12

The illegality of the transaction need not be pleaded: courts will take notice of it wherever it appears.

W. 483; Woodworth V. Bennett (1870), 43 N. Y. 273, 3 Am. Rep. 706, Mechem's Partn. Cas. 43; Read v. Smith (1883), 60 Tex. 379; Wiggins v. Bisso (1898), 92 Tex. 219, 47 8. W. 637, 71 Am. St. R. 837; Emery v. Candle Co. (1890), 47 Ohio St. 320, 24 N. E. 660, 21 Am. St. R. 819; Morrison v. Bennett (1898), 20 Mont. 560, 52 Pac. 553, 40 L. R. A. 158; Craft v. McConoughy (1875), 79 Ill. 346, 22 Am. Rep. 171, Mechem's Cas. 48; Wright v. Cudahy (1897), 168 Ill. 86, 48 N. E. 39; and other cases cited in the notes to § 44, ante.

9 See Brooks v. Martin (1864), 2 Wall. (U. S.) 70, 17 L. ed. 732; Crescent Ins. Co. v. Bear (1887), 23 Fla. 50, 1 So. 318, 11 Am. St. R. 331; De Leon v. Trevino (1878), 49 Tex. 88, 30 Am. Rep. 101; Patty-Joiner Co. V. City Bank (1897), 15 Tex. Civ. App. 475, 41

S. W. 173, Burd. Cas. 484; Andrews
v. Brewing Association (1896), 74
Miss. 362, 20 So. 837, 60 Am. St.
R. 509.

10 See Central Trust Co. v. Respass, supra; McMullen v. Hoffman, supra; Sykes v. Beadon (1879), 11 Ch. Div. 170; Snell v. Dwight (1876), 120 Mass. 9; Jackson v. McLean (1889), 100 Mo. 130, 13 S. W. 393; Woodworth v. Bennett, supra; Hunter v. Pfeiffer, supra; Craft v. McConoughy, supra.

11 See McMullen v. Hoffman, supra; Central Trust Co. v. Respass, supra; Woodworth v. Bennett, supra.

12 See Armstrong v. American Exch. Nat. Bank (1890), 133 U. S. 433, 10 Sup. Ct. 450, 33 L. ed. 747; King v. Winants, supra; Mitchell v. Fish (1911), 97 Ark. 444, 134 S. W. 940, 36 L. R. A. (N. S.) 838.