85 Md. 360 | Md. | 1897
delivered the opinion of the Court.
The facts out of which this controversy arises, are substantially, that on the 6th of February, 1896, Lewis A. Gusdorff, the appellant, and Solomon Schleisner, the appellee, agreed in writing under seal, to become partners in the general merchandising business for the term of three years, commencing on the first of July, 1896, and ending on the 30th day of June, 1899; that by the terms of said agreement the respective sums which each partner was to con-.
1st. For a dissolution of the copartnership existing between the appellant and the appellee.
2nd. For a specific performance in part of the articles of •copartnership, to the effect that the appellee be required to ■contribute to the copartnership capital the sum of $8,000 .in accordance with the terms of said agreement.
3rd. For the appointment of a receiver to take charge of Tthe ^partnership assets.
Upon filing the bill, an injunction was issued and a receiver appointed. The appellee answered the bill denying all its material allegations, and demurred to the jurisdiction of the Court below to grant specific performance of the contract of copartnership and to restrain the appellee from withdrawing his individual deposits from the banks named in. the bill. The Court sustained the demurrer and dissolved the injunction, and from the action of the Court below this appeal is taken. The appellant in his printed brief says, “ The only contest raised by the demurrer to this bill and decided by the Court below, is as to the power of the Court to issue an injunction, restraining Schleisner from drawing his $8,000, or thereabouts, out of bank and converting it to his own use, until the further order of the Court; and that is the sole question for this Court to decide. ”
In passing upon this contention it will be necessary for us to examine briefly some of the other questions named in the bill, as throwing light upon the proposition conceded to be the leading and only inquiry on this appeal. There is exhibited with the bill a duplicate of the articles of co-partnership, certain paragraphs of which we have set out in this opinion, that the same may assist in the presentation of the object and purpose sought to be accomplished by the bill. The truth of the facts set out in the bill, where they are properly pleaded, will not be questioned, but where the bill alleges a fact expressly negatived by the contract of partnership filed with the bill, such representation of fact cannot be said to be properly pleaded, nor is it entitled to be accepted as true. On the contrary, the-bill and exhibit being read and construed together, show very clearly that “ said partners shall not, by himself, or with any other person or persons whomsoever, during the continuance of the
The first item of relief prayed for is that the existing partnership between the parties to this proceeding be dissolved, and this is asked by the appellant upon the admitted fact that the appellee’s physical condition is such that it is impossible for him to engage in any business, and as conceded by the bill the appellee upon ascertaining the condition of his health informed the appellant “ that the only course to pursue would be to wind up the business at once, &c., suggesting an assignment for the benefit of creditors as the best thing to do.”
The various sums of money which the appellee had deposited in the banks heretofore mentioned were still in those banks at the time the bill was filed, and would necessarily have passed to the hands of any trustee named by said partners for the benefit of the firm’s creditors, but this proposition was declined by the appellant, who preferred the appointment of a receiver and the granting of an injunction, and as a result this bill was filed. The bill contains no allegation of the insolvency of the appellee, and it is a reasonable inference that if he had been insolvent the appellant would not have entered into a copartnership with him for the term of three years commencing on the first day of July, 1896, and which employed a capital of $30,000. The bill was filed on the 19th of August, 1896, fifty days after the partnership was to become an active business concern. Each partner, prior to the fourth of August, 1896, contributed to the capital of said partnership the sum of $2,000, and neither partner has made any further contribution to the capital, although the appellant claims to have been always ready and willing to contribute such sum or sums as he had contracted to pay, but it is charged that the appellee has failed to contribute the amount which he has, by the terms of said contract agreed to pay, although repeatedly requested so to do ; and it is further charged that
In conclusion and as decisive of the qtiestion which the
As a consequence of the reasons heretofore assigned the order of the Court below sustaining the demurrer to the bill of complaint and dissolving the injunction is hereby affirmed with costs.
Order affirmed with costs.