The Modern Law of Partnership: Including a Full Consideration of Joint Adventures, Limited Partnerships, and Joint Stock Companies, Together with a Treatment of the Uniform Partnership Act, Volume 1

Front Cover
Bobbs-Merrill, 1916 - 1706 pages
 

Selected pages

Contents

American Uniform Partnership Act 10
11
Scope of Uniform Partnership Act 14 12 General view of Uniform Partnership Act and changes made by it in existing partnership law 13 Uniform Pa...
14
SECTION
15
Definitions generally CHAPTER II
19
General aspects of partnership liability SECTION CHAPTER III
28
Tests of partnership in general
29
36 English lawTest of profit sharingBloxham v Pell
30
English test of profit sharingYoung v Axtell
31
English test of profit sharingGrace v Smith
32
English test of profit sharingWaugh v Carver
33
Criticism of Waugh v Carver
35
Net and gross profits
38
Test of sharing profits and losses
39
43 Test of intentionCox v Hickman
40
No necessity in Cox v Hickman for test of intention 45 Change of English lawBullen v Sharp
43
Doctrine of intentionMollwo v The Court of Wards 47 Criticism of test of intention
45
SECTION PAGE 49 Test of estoppel
46
Summary of English law
48
The early rule
49
The Pennsylvania rule
50
The New York rule
51
Other American cases holding the profit sharing test
52
American cases opposing net profits rule
53
Right to a preference or to an account should not make a creditor a partnerEastman v Clark
54
The usury argument fallaciousEastman v Clark
55
Argument as to one sharing profits bearing burden fallaciousEast man v Clark
57
Rule not needed to reach an ostensible partnerEastman v Clark
58
Intention test followedBeecher v Bush
60
Intention test followedChaffraix v Lafitte
61
Common ownership of profits in joint businessMeehan v Valentine
63
Other American cases opposing net profit rule
64
Sharing profits as such
65
Sharing profits but not losses
66
Sharing profits and losses
67
Sharing profits and losses held insufficient to constitute a partnership
68
Sharing losses only
69
ExceptionsSharing of profits as compensation for services
71
Sharing profits as compensation eo nomine
76
Sharing profits as fee or commission
77
Sharing profits as a royalty
78
Right to demand accounting
83
Test of profit sharingThe Uniform Partnership act
85
Test of mutual agency
87
The principal trader test
90
Intention test in England
91
88 Intention test in AmericaPolk v Buchanan
92
Later American cases on intention as test
93
Intention test of partnership under civil law
97
Reliance on the holding out 95 Creditor must be misled by acts or misrepresentations
102
Time of making representation
103
Attempted limited partnership
104
Summary of tests
106
SummaryProfit sharing evidence of a partnershipEstoppel
110
CHAPTER IV
113
Sharing of profits
114
Intention
115
Mutual agency
116
NatureA trust relation
118
Partnership held not to be an entity
119
Partnership held to be an entity
121
EntityChange of firm
123
EntityCodes of other nations
127
EntityUniform Partnership Act
128
Distinction between partnership and joint purchase
129
Partnership distinguished from joint tenancy and tenancy in common
130
Distinction between partnership and relation of landlord and tenant
131
Distinction between partnership and corporation
132
Distinction between partnership and trust
133
CHAPTER V
135
Special partners
136
Dormant or secret partners
137
Silent partners
140
General partnerships
141
Classification loosely used
142
Limited partnerships
143
Joint stock companies
144
Partnership associations
146
Subpartnerships
147
Rights and liabilities of subpartners inter sese
149
Trading and nontrading partnerships
150
Mining partnerships
153
Creation and dissolution of mining partnerships
155
Legal and illegal partnerships
156
Defective incorporations
157
Unincorporated associations
160
Clubs and societies
161
Joint ownership as partnership
164
CHAPTER VI
166
Association for purpose other than pecuniary profit
167
Voluntary associations for mutual relief
168
Partnership may exist as to single transaction
169
Partnership for dealing in real estate
170
Illegal purpose or business
173
Grounds of illegality
174
Offenses against morality or public welfare
176
Partnership in public office
178
Effect of illegality generallyAccounting to partner
179
Effect of illegalitySeverable contract
180
CHAPTER VII
182
Aliens
183
Felons and convicts
185
Infants
186
Insane persons
192
Married women
193
Husband and wife
195
Partnership as partner
197
Theory that corporation may enter into partnershipUniform Part nership Act
200
Corporation held liable as partner
203
Corporation as coowner not held liable as partner
205
Tenants in common as partners
206
Partners not qualified to take part in firm business requiring license
207
Delectus personarumChoice of partners
208
CHAPTER VIII
210
Articles of partnership
211
Verbal contract
212
Implied contract
213
Mutual assent
214
Consideration
215
Examples of agreements held to constitute a partnership
217
Cases in which relation was not created
221
Statute of frauds
224
Cases distinguishedHow contract may be taken out of statute
228
Partnership agreements between carriers
230
Parties to executory partnership agreement
232
Partnership agreement induced by fraud
234
When relation begins
236
English partnership
237
Renewal or continuation
238
CHAPTER IX
240
Incorporation defective
242
Capital stock not paid
245
Failure to file certificate of incorporation
247
Increase of capital stock without filing certificate
248
Failure to comply with statutory requirementsEffect
249
Extent of stockholders liability under statutes
250
Stockholders of de facto corporations not liableCertificates con clusive
251
Estoppel of creditor contracting with corporation
253
PAGE 19 23 24 25 PAGE 29
255
Incorporation incompleteIllustrations of liability
256
31
258
Adventurers not liable as partners
260
33
261
40
262
Ineffectual organizationWhen creditor may ignore
263
45
264
Conflicting theories of partnership liability of corporators
265
Pretended officers liable as partners
267
Partnership liability where incorporation is for unauthorized business
268
Corporation organized under void or unconstitutional law
270
Liability for ultra vires acts
272
Partnership liability imposed by statute
276
Effect of dealing with a corporation under belief that it was a part nership
277
Liability as partnersBurden of proof
279
CHAPTER X
281
Firm nameChoice display failure to choose
283
Statutory regulation of choice of firm name and registration of part ners
285
What is a fictitious or assumed name within the statutes
288
Validity of contract under assumed name in violation of statute
289
Use of firm name
292
Unfair competition by use of firm name
296
Scope of partnership in general
298
SECTION PAGE 268 General powers of partnership as a whole
299
Partnerships as parties to deeds
300
Assumption by firm of partners individual debts
302
CHAPTER XI
305
Partnership property obtained with partnership funds
308
Property owned by partner used in firm business
313
Property acquired in exercise of partnership rights
315
Partnership propertyUniform Partnership Act
316
When real estate is partnership property
317
Intention
319
Title in partners as individuals
321
Title in firm name
322
Land purchased by partnership dealing in real estate
323
When real estate is partnership propertySummary
324
Equitable conversion of partnership realty into personaltyEnglish rule
325
Equitable conversionAmerican rule
326
Equitable conversionVarious statements of American ruleEffect and limits
328
Interest of partner in firm property
333
Interest of partner in firm property further considered
338
Tenancy in partnershipUniform Partnership Act
340
Possession of firm property
342
Proportionate shares of partners
343
Dower and homestead rights in partnership real estate
344
Right to exemptions in partnership property
347
Insurance of partnership propertyInsurable interest
349
InsuranceOwnership clause in policyTransfers by and between partners
350
Guaranty insuranceIdentity of the insuredPartnership
353
Mortgage of partnership real estate
354
Mortgage by one partnerNotice of partnership equities
357
Mortgage of partners separate property to secure firm debt
359
Mortgage of partnership personal property
361
Conveyance of partnership real estateUniform Partnership Act
363
Taxation of partnership property
364
Transfer of property from partnership to partner
366
CHAPTER XII
370
Sale of good will in absence of restrictive covenant
372
Retiring partner soliciting old customersEnglish rule
373
Soliciting old customersAmerican holdings
375
Cases holding old customers may be solicited
376
Agreements by partners not to compete
378
Breach of contract by entering employ of another
380
SECTION PAGE 322 Sale of good will at involuntary sale
381
Utmost good faithA right
392
Good faithPartnership a trust relation
393
Right to share profits
395
Rights in firm property
397
Right to information about business
398
Right to conduct other business
399
Right to compensation for services for firm
401
Compensation where services are unequal
404
Compensation for services after dissolution
407
Compensation to surviving partner
409
Implied contract for compensation
412
Compensation for services rendered in other capacity than partner
414
Partner failing or refusing to perform servicesMisconduct
415
Repayment of capital
417
Repayment of advances
419
Right of partner to interest in general
421
Right to interest on capital
422
Right to interest on advances
425
Right to interest on balance
427
When partner is chargeable with interest on debts owing by him to the firm
429
ContributionLimit
434
Right to indemnity from loss caused by copartner
435
Right to subrogation
436
Right to sue firm or copartner for negligence as to individual prop erty
437
Right to keeping of accounts and accounting
439
Arbitration of differences between partners
441
CHAPTER XIV
448
Good faith a dutyWhen required
449
SECTION PAGE 382 Negligence
451
Bad judgment
452
Fraud as to firm or copartner
453
Duty to conform to partnership agreement
454
Construction of partnership agreement
455
Duty to devote time and skill to business
457
Duty to keep partnership accounts
458
Purchase by partner of claim or title against partnership or partner
461
Diversion of profits from copartner
462
Secret use of partnership funds
463
Use of influence or information
465
Renewing firm lease or other contract in individual name
466
Secret commissions
468
Partnership in different firms
473
Dealings between partner and firm
474
Dealings between copartners
475
Good faith required in partners purchase of copartners interest
476
Duty to share outlays and losses
478
Duty to consult partner on firm matters
480
Liability for torts
481
CHAPTER XV
484
SECTION PAGE 410 In general
485
Kind of partnership as affecting partners authority
487
Scope of business
489
Partnership customs and usages as affecting partners authority
490
What contracts require consent of all partners
491
Power of a majority in partnership matters
493
Powers of managing partner
496
Restrictions of partners authority
498
Liability of firm on partners individual contracts
500
Contracts between firms having common partner
501
Power to sign firm name
502
Power to execute instrument under seal
504
Power to incur firm debt
507
Power to borrow money
508
Power to make negotiable paper
511
Power to make negotiable paperNontrading partnerships
515
Indorsement of note as accommodation or surety
520
Bona fide purchasers
521
Power of one partner to transfer firm negotiable paper
523
Fraudulent transfer
524
What will put purchaser of partnership paper on inquiry
525
Firm liability on notes of individual partner
527
Notes as discharging debt
529
Power to give note for individual debt
530
Power to make sealed note
531
SECTION PAGE 437 Form of signatureAlteration or renewal of note
532
Powers after dissolution
533
Mortgage to secure partners individual debt
538
Bona fide holders of mortgage on partnership real estate
540
Power to pledge firm property
541
Power to sell firm property
542
Power to purchase property
546
Power to hire or lease property for firm
548
Power to insure firm property
549
Power to appoint agents
550
Power to employ servants
551
Power to collect and pay debts
553
Power to make releases to settle and compromise
555
Power to alter contracts
556
Power to make contract of guaranty or suretyship or bond
557
Power to pay individual debts with firm assets
560
Power to institute litigation
564
Power to confess judgment
565
Power to make assignment for benefit of creditors
566
Power to submit to arbitration
569
Submission to arbitration by consent
570
Ratification of submission
571
What constitutes arbitration
573
Acts creating individual liability
574
Admissions and representations by partner
575
Admissions made after dissolution
577
Admissions after dissolution as taking firm debt out of statute of limitations
579
Notice to partner
580
Notice of authority of partner as affecting rights of third parties
584
Ratification of acts of partner
585
Ratification by receipt of benefits
587
Ratification by failure to repudiate
589
Ratification by retiring partner
590
Estoppel
591
EstoppelReliance of third party
595
CHAPTER XVI
597
Contracts binding upon partnership
598
Apparent scope of partners authority
605
Nature of liability of partner in contract
607
Liability of joint obligors
608
Release of one joint debtor releases all
609
Effect of death of joint contractor
612
Actions on joint and joint and several contracts
613
Statutory modifications
616
Extent of partnership liability in contract
628
Commencement and termination of partnership liability
629
Judgment against or settlement with one partner as releasing all
630
Liability of dormant partner
633
Right of creditor to recover on firm negotiable paper
635
Actions and other legal measures against partnerships
637
Liability for torts of agents and servants
639
Liability of joint tortfeasorsGenerally
640
Nature of partnership liability in tort
642
Judgment against one partner or release of one partner releases all
643
Fraudulent misrepresentations
644
Negligence
647
Trespass
650
Wilful and malicious torts
651
Libel and slander
653
Torts in collection of debts
654
Acts against positive law
655
Property wrongfully obtained or held
656
Misapplication of trust funds
657
Liability of partners under criminal laws
660
CHAPTER XVII
663
Creditors have no lien on partnership assets
666
Application of assets by partners
669
Application of firm assets by partners to individual debts
670
Mortgage of firm property by partners
673
Assignment by partners for benefit of creditors
676
Transfer of property to partner or new firm
677
Individual assets of partner
680
Application of assets of partnership by court
681
Rights of partnership creditors in partnership assets
682
Rights of partnership creditors in assets of individual partners
683
Rights of creditors of individual partners
688
Rights of partner as firm creditor
690
Rights of partners or firm as creditors of individual partner
692
Rights of creditors of different firms having common partner
693
Priority of creditors in cases of ostensible partnership
694
CHAPTER XVIII
696
Transfer of partners interest to copartner
698
Transfer of partners interest to third party
699
Firm nameGood willCompetition by retiring partner
701
SECTION PAGE 554 Rights of retiring partner in assets of old firm
702
Rights of continuing partner and new firm in assets of old firm
704
Liability of retiring partner for obligations of old firm
705
Assumption of debts of old firm
706
Retiring partner as surety on obligations of old firm
707
Liability of continuing partners or new firm for obligations of old firm
712
Liability under Uniform Partnership Act of persons continuing busi ness
716
Liability of incoming partner for obligations of old firm
718
NovationApplication of payments
720
Liability of retiring partner for new firms obligations
722
Liability to retiring partner on breach of agreement to assume firm debts
724
CHAPTER XIX
727
SECTION PAGE 570 In general
728
Expiration of term
730
Express will of all partners
733
By expulsion of partner
735
By express will of one partner in contravention of agreement
736
By event making partnership unlawfulWar
739
Marriage of a woman partner
741
By death of a partner
744
By bankruptcy
748
Levy of attachment or execution sale
749
By judicial decree and by operation of lawGenerally
750
Dissolution for insanity
753
Dissolution for other incapacity of partner
756
Dissolution for conduct prejudicially affecting carrying on of busi ness
757
For wilful or persistent breach of partnership agreement
758
When further concerted action impracticable
760
When business can only be carried on at a loss
763
For fraud in inception of relation
765
Dissolution by transfer of partners interest
767
Status of partnership after dissolution
771
Powers of partners after dissolutionGenerally
773
Notice of dissolution
775
Uniform Partnership Act as to powers after dissolution and charac ter of notice
777
Character of notice acquired and persons entitled to notice
779
Dissolution terminates contract of agency
786
Powers of partner to administer firm affairs
787
Some general powers and disqualifications of partner after dissolu tion
788
Admissions of partner after dissolution
790
Power over firm property
792
Power to collect pay or compromise firm debt
794
Power to make new contracts
795
SECTION PAGE
797
Copyright

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Common terms and phrases

affd agent assets authority Bank Barb Beav Brown capital Clark Colo Conn contract copartners corporation court creditors Davis debts English Partnership estopped estoppel firm name firm property Gray Mass Hun N. Y. individual intention interest Iowa Johnson joint Jones Kans L. J. Ch land liable as partners Maine ment Miller Minn Misc Miss Mont mortgage N. J. Eq N. Y. St N. Y. Super Nebr nership Ohio St Okla old firm parties partnership agreement partnership business partnership liability partnership property principle profit sharing profits and losses purchase real estate relation rule sections-Vol ship Smith statute stockholders Strob Tenn test of partnership third persons tion transaction Uniform Partnership Act Wash Wend Wilson

Popular passages

Page 85 - The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment: a.‎
Appears in 387 books from 1858-2008
Page 694 - A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with his contract...‎
Appears in 217 books from 1858-2006
Page 456 - Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct or liquidation of the partnership or from any use by him of its property.‎
Appears in 241 books from 1858-2007
Page 178 - A partnership is an association of two or more persons to carry on as co-owners a business for profit.‎
Appears in 646 books from 1874-2008
Page 101 - When a person has been thus represented to be a partner in an existing partnership, or with one or more persons not actual partners...‎
Appears in 155 books from 1877-2005
Page 488 - ... unless authorized by the other partners. (3) Unless authorized by the other partners or unless they have abandoned the business...‎
Appears in 125 books from 1888-2004
Page 234 - 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.‎
Appears in 192 books from 1877-2007
Page 483 - ... unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.‎
Appears in 319 books from 1858-2008
Page 21 - A contract of two or more competent persons, to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.‎
Appears in 258 books from 1830-2006
Page 492 - Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners ; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.‎
Appears in 242 books from 1858-2007

Bibliographic information

TitleThe Modern Law of Partnership: Including a Full Consideration of Joint Adventures, Limited Partnerships, and Joint Stock Companies, Together with a Treatment of the Uniform Partnership Act, Volume 1
The Modern Law of Partnership: Including a Full Consideration of Joint Adventures, Limited Partnerships, and Joint Stock Companies, Together with a Treatment of the Uniform Partnership Act, Scott Rowley
AuthorScott Rowley
PublisherBobbs-Merrill, 1916
Original fromHarvard University
Digitized26 Oct 2007
Length1706 pages
  
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