16 Or. 26 | Or. | 1888
This is a suit in equity, commenced by plaintiff against the defendant for an accounting in relation to the business and property of the partnership of W. S. Wines & Co., which firm consisted of W. S. Wines and H. B. Glover.
PRAYER OP COMPLAINT.
That the firm of W. S. Wines & Co. be dissolved, and an account be taken of all the said copartnership dealings and transactions from the commencement thereof up to the 27th of January, 1885; that plaintiff be decreed to be the owner of, and entitled to the joint possession of, with said defendants Church and Goodnough, on the 27th of January, 1885, an undivided one-half interest of, in, and to the whole of said business and property belonging thereto, and to ascertain the value of said interest to be two thousand dollars; that plaintiff have judgment against said Goodnough and Church, and each of them, for the value of his said interest in said copartnership business and the property thereof on the said twenty-seventh day of January, 1885, after the same shall have been fully ascertained and determined by the court in this suit, together with legal interest on the full amount, etc., and for general relief.
To this complaint the respondent demurred on the following grounds: “ First. The court has no jurisdiction of the subject of the action as to them. Second. That the complaint does not state facts sufficient to constitute a cause of suit as to them.
The only questions, therefore, which we are called on to consider are those presented by the demurrer. (1) Two questions seem to present themselves: First, What rights or interest did the plaintiff acquire in the partnership business and property of W. S. Wines & Co. by the purchase of the interest of H. B. Glover therein? and second, what remedies has he for the assertion and maintenance of those rights? These two questions are so intimately blended that it will be more convenient to consider them together. There can be no doubt but what a member of a copartnership may lawfully sell and transfer his entire interest in the property and business of the firm. He may clothe his vendee with all of his rights, except he cannot make him a member of the firm; the consent of the remaining members would be necessary to do that. Parsons on Partnership, section 359, states the rule thus: “The purchaser would not become a partner; but he would stand in the place of the partner whose interest he bought, and acquire all of his rights which were necessary to make his interest valuable and available. That is, he would have the right to call for an account and a settlement of the partnership concern, and to take his share of any surplus in severalty; and a court of equity would probably render him the same assistance in obtaining and enforcing these rights that they would to the partner whose interest he has bought.” So it'is said by another eminent American author (Story on Partnership, §§ 307-310) that if one partner make a voluntary assignment of all his interest in the partnership property and effects, that will at once dissolve the partnership and convert the assignee or purchaser into a tenant in common with the other partners. And the same result follows in case of the sale upon execution of the interest of one partner in the partnership property.
2. Under the facts stated in the complaint, the plaintiff was tenant in common in the property and effects of the late firm of W. S. Wines & Co. with the other defendants Goodnough and
3. It was urged upon the argument with much confidence by the learned counsel for respondent that the plaintiff had an adequate remedy at law in this case, aud for that reason a court of equity ought not to entertain jurisdiction; but we cannot accede to this view. There are doubtless cases where, as between tenants in common of chattels, as when one of the tenants wrongfully sells the chattel held in common, a court of law may grant adequate relief in damages; but it is not perceived how it would be adequate in this case, where the extent of the interest of the parties may depend on an account; nor are courts of equity without jurisdiction in every case, where courts of law entertain it. There is a large class of cases where courts of law and equity exercise concurrent jurisdiction; and matters of account being a subject of very ancient equity jurisdiction, equity would not lose it though courts of law should assume jurisdiction in like cases. But in this case it is clear that a court of law could not have any jurisdiction to grant the relief to which the plaintiff by his complaint shows himself to be entitled.
The decree will therefore be reversed, and the cause remanded to the court below, with directions to overrule the demurrer and for further proceedings.