45 Conn. 424 | Conn. | 1878
In 1850 Erastus Brainerd, Erastus Brainerd, Jr., Frederick Hall, Joseph Stancliff, Mary M. Brainerd and Ellen M. Duffield, (the two latter by agent and trustee,) entered into a written copartnership agreement for the purpose of carrying on the business of quarrying and selling stone, for such length of time as a majority in interest of the partners should request and demand. At this time they were the owners of cattle, tools, carts, &c., of the value of $50,000, and quarry lands of the value of $235,000, and this property constituted their capital stock, and was owned in the following proportions, viz: Erastus Brainerd, five-sixteenths; Erastus Brainerd, Jr., two-sixteentlis; Mary M. Brainerd and Ellen M. Duffield, five-sixteenths; Frederick Hall, two-sixteenths; Joseph Stancliff, two-sixteenths. The said Mary M. Brainerd had an estate for life in an undivided interest in the real estate, as widow of Silas Brainerd, and the said Ellen M. Duffield, who was her daughter, had an estate in fee in the same interest subject to her mother’s life estate, and the interest in the copartnership held by them and representing this real estate, was held by them in the same way.
Frederick Hall died in 1867; Erastus Brainerd in 1861; Joseph Stancliff in 1870; Mary M. Brainerd in 1872. Erastus Brainerd, Jr., and Ellen M. Duffield, now Ellen M. Pike, and daughter of said Mary, still survive; the petitioners are the . children of Ellen M. Pike, joining with William J. Osborne, administrator upon the estate of the said Mary; the respondents are Erastus Brainerd, Jr., and the representatives of the several deceased partners.
Notwithstanding these successive deaths the copartnership business has been continued to the present time by the managers without interruption or change, and without objection on the part of the representatives or heirs of any deceased partner, except that the administrator upon the estate of Mary M. Brainerd called upon Erastus Brainerd, Jr., then and still the chief manager, for an account and payment of the money due to that estate, and in November, 1874, brought
They also allege that, by the death of sundry partners and other changes, and by the division and confusion of interests, they are unable to say whether the copartnership has been dissolved or not, but that they believe, and therefore say, that it has been dissolved and terminated.
They also pray that if it should appear that the copartnership has been dissolved, the court will order an account of its transactions during the time of Mary M. Brainerd’s life, and that the respondents be directed to pay to the petitioners such sums as shall be due to her estate and to the said legatees, and that some proper person be appointed a receiver, with authority under the direction of the court to sell that part of the property which is within this jurisdiction, ascertain the value of that which is without, to collect the money due to the partnership, and hold the same subject to the order of the court.
After the death of any partner his representatives have joined with the surviving partners in permitting and requesting Erastus Brainerd, Jr., who has been the chief manager of the partnership from its organization to this present, to continue the business as that of a partnership in form and fact; no one of them declared a dissolution, or asked the court to enforce one; they severally accepted their respective proportions of profits specifically as dividends earned by a continuing partnership, and not as a percentage of assets returned after a final settlement of partnership affairs. And, although
Having thus induced him to manage the business as one of continuing partnership and entitled themselves to the greater profits which might result from that relation, they should likewise share with him its risks and obligations, until they shall give him distinct and precise notice that from and after a day to be named by them they reverse their previous election that the partnership should continue, and that from thenceforth they shall hold him accountable as a surviving partner
From the service of such notice the general rule of law terminating a partnership upon the death of a member, the operation of which in this particular case has been restrained-by the petitioners, will come into action, and they will be entitled to the aid of a court of equity in enforcing it. From that date it will be the duty of the managers to close the business of the partnership as speedily as a proper regard for the interests of all concerned will permit; and when all debts are paid the assets remaining should be divided as if upon the day of the notice the copartnership had expired by an express limitation incorporated in the articles of its formation.
We do not regard the petition as such- an unequivocal declaration of their desire to reverse their original election-as will justify us in saying that the service of it shall stand for the notice above indicated; for in it the petitioners admit that they are unable to say either that the partnership has or that it has not been dissolved; only, that they believe, and therefore aver -the former. This is to be interpreted as suggesting with hesitation that possibly the law of the events mentioned may have overborne their will in the matter and forced upon them a dissolution, contrary to their desire for a continuance of the partnership.
In the fourth paragraph they allege that the copartnership continued to the death of Mrs. Brainerd, notwithstanding the previous deaths of partners, and in the sixth they request the court to order the sale of such property paid for from undivided profits as is not required for the proper use of the business of the partnership and a division of the proceeds thereof; indicating thereby a desire not to bring that business to a termination.
As we are of opinion that the petitioners are not entitled to a decree declaring the partnership to have been dissolved at the death of Mrs. Brainerd, and ordering a division of the assets upon the basis of the manager’s inventory and valuation made in March, 1873, for the ordinary purposes of the partnership; and as the finding does not support the allega