| Pa. | Mar 3, 1884
delivered the opinion of the court, April 28,1884.
The decree made by the learned court below in this case merely ordered the payment of the sum of fifteen hundred dollars by the defendant to the plaintiff, as his full share of a dividend of profits declared in 1879. There was no decree of dissolution of the partnership asked for in the bill or made by the court; there was no final account nor any winding up of the affairs of the partnership. Of course there was no adjudication either of the. status of the parties or of their respective rights to the property of the partnership, as upon a final settlement and distribution of the property and assets of the partnership. The money ordered to be paid was a share of a dividend of the current profits of the firm. The profits realized from the business were of course personal property in any aspect of the case. They represent, not the mere product of
The partnership in which the parties plaintiff and defendants were interested, was a continuing one which commenced in 1852, and which has never yet been dissolved. No question as to the ultimate ownership of the real estate of the firm, after a dissolution has taken place, arises upon the present record. The articles of copartnership contained an express provision that the firm should not be dissolved by the death, withdrawal, failure or pleasure of any of its members, nor in any way but by the consent of all the members thereof. A method of continuing the partnership after the death of a member is also provided. That such stipulations are perfectly valid and binding cannot be doubted: Story on Part., §§ 196 to 201; Gratz v. Bayard, 11 S. & R., 46; Laughlin v. Lorenz, 12 Wr., 282, and authorities cited by Agnew, J., on p. 283.
In the present case, in addition to the provision for a continuance of the partnership after the death of a member, there is also a stipulation that the furnace and lands of the firm shall be held as personal property. In point of fact the real estate of the firm was acquired with partnership funds and used for partnership purposes.' In every view of the case so lar as any question which now arises is concerned, during the continuance of the partnership agreement, all the property of the firm must be regarded as personal estate. Certainly this must be so as to mere dividends of profits earned in carrying-on the business. We cannot declare the partnership contract at an end, nor can we dissolve the firm, or deal with its assets as though it were dissolved, by any order which it would b« possible for us to make in this proceeding. We have considered the very able argument of the learned counsel for the appellants with great care, but we are not convinced that it is applicable to the present situation in its leading points. The decision in Foster’s Appeal, 24 P. F. Smith, 391, much relied upon for the appellants, is predicated of a dissolved firm, with all its debts paid, and a residuum of unconverted land remaining in specie for mere purposes of distribution. But there are no such facts here. It cannot now be known that the real estate will not be required for the payment of debts. The firm still continues its business under a lawful agreement to that effect. Whenever a dissolution shall be established, and a final settlement of accounts shall take place, the positions
Decree affirmed at the cost of the appellants.