31 Minn. 186 | Minn. | 1883
1. An excess of parties is not ground of demurrer as “a defect of parties,” in the meaning of Gen. St. 1878, c. 66, § 92, subd. 4; Pomeroy on Remedies, § 206; Richtmyer v. Richtmyer, 50 Barb. 55; Allen v. City of Buffalo, 38 N. Y. 280; Lewis v. Williams, 3 Minn. 95, (151.)
2. Three members of a partnership firm and the heirs of a deceased fourth bring this action against the remaining member, for the purpose (1) of having the partnership adjudged dissolved; (2) of having the partnership wound up, and, to that end, an accounting had, a receiver appointed, its assets converted, its debts paid, and the rights of the partners among themselves ascertained and adjusted.
In the absence of previous agreement to the contrary, the death of a partner works a total dissolution of a partnership; that is to say, a dissolution both as respects the deceased and the surviving partners. Pollock on Partnership, § 183; Collyer on Partnership, §§ 103, 106; Story on Partnership, §§ 317, 319a, Marlett v. Jackman, 3 Allen, 287; Roberts v. Kelsey, 38 Mich. 602; 1 Lindley on Partnership, 231. A simple provision in the articles for the continuance of the partnership for a fixed period, as, in the present instance, for 30 years, is not such an agreement. Collyer on Partnership, §§ 100, 105; Crawford v. Hamilton, 3 Madd. 251; Crosbie v. Guion, 23 Beav. 518; Story on Partnership, § 319a. Mining partnerships appear to be governed by somewhat different rules. Jones v. Clark, 42 Cal. 180.
In case of such dissolution, the right of surviving partners and of the representative of a deceased partner to have the partnership wound up, and any surplus property distributed, is matter of course. 1 Collyer on Partnership, § 107.
In the ease at bar the partnership was dissolved by the death of the partner Hoard. The articles contain no stipulation for the continuance of the business of the concern, except upon specified contin
Order affirmed.