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tion was approved of by the Court, and the defendant had a verdict. The same doctrine had been advanced by Lord Ellenborough in Cooper v. Twihill, and was subsequently held in Holcombe v. Hewson, and recognised in Jones v. Edney.3

In Morris v. Colman, on a motion to dissolve an injunction, a question arose respecting the validity of an agreement, by which the defendant was restrained from writing dramatic pieces for any other theatre than that of the plaintiff's, and the Lord Chancellor remarked, “ The contract is not unreasonable. Why should they not engage for the talents of each other? The ground might be supposed that nothing could be made of the theatre without exhibiting the talents of each other."

Where, however, an individual engages to work exclusively for another, there must be a corresponding engagement on his part to give the restrained party full employment, otherwise the contract fails for want of consideration. Thus in Young and another, assignees of Ireland, v. Timmins, it appeared that the bankrupt, a working brass-founder at Birmingham, had entered into an agreement with the defendants to work 'for them during their joint lives as before, in a good manner, and at general and proper prices, and that he would not work for or execute the orders of any other person without the consent in writing of the defendants. The defendants agreed to employ the bankrupt during their joint lives, in executing their orders, as before, and upon the like or other usual terms, subject to the provisoes after mentioned. Then followed a proviso that the defendants might put an end to the agreement by giving the bankrupt three months' notice, and that in case they had occasion, or should be under the necessity by reason of the urgency or extent of orders, “ or should otherwise think fit,” they should be at liberty to employ any other person without releasing the bankrupt. There was also a proviso that the bankrupt might take the orders of any person in London, or within six miles thereof. The Court held the agreement void for want of mutuality, the defendants not being bound to give the bankrupt full employment.6

Lastly. The law leaves a person at liberty to exercise his trade in what capacity he pleases, so that he does not stipu

1 Referred to in note 3 Camp. 285. 9 2 Camp. 391. 3 Camp. 285. * 18 Ves. 437. $ 1 Tyr. 226. 6 And see Gale v. Reed, 8 East; 80.


late for a total and absolute restraint. In Gale v. Reed, so often cited, a contract by which a retiring partner bound himself to carry all orders which he should receive to the continuing partners, who were to allow him a certain commission thereon, and not to carry on the business on his account for ever afterwards, was held valid. And in the recent case of Wallis v. Day, the plaintiff, a common carrier, having sold to the defendants the good-will of his business, covenanted that he would not thenceforth either by himself or by any other person carry on the said business, but would during his life serve the defendants as assistant therein ; in consideration of which the defendants covenanted to pay him for fifteen years the weekly sum of 21. 3s. 10d., and for the remainder of his life 17. 3s. 10d. The action was brought for nonpayment of the weekly salary. It was objected on demurrer, that a contract of servitude for a person's life was void, and that the agreement was moreover void as being too large a restraint of trade. But the Court overruled both objections, and gave judgment for the plaintiff.

It may be observed that the sale of the good-will of a business does not of itself import restraint;? but if there are any circumstances in the transaction from which an understanding to that effect may be inferred, though there is no stipulation not to set up the trade, a Court of Equity will interfere by injunction.3

The remedy for breach of contracts of this description is, either at law for the recovery of the penalty or damages, or in equity for a specific performance, or both.4

Where a certain sum is agreed on by the parties to be paid on a breach as for liquidated damages, it seems that the payment of the amount operates at law as a repurchase of the right;5 but where it appears that the main object of the agreement was to secure the exclusive trade, and the damages are only accessional, a Court of Equity will relieve against the judgment, by directing an issue of quantum damnificatus, and restrain the party from committing further breaches.


12 M. & W. 273.

2 Shackle v. Baker, 14 Ves. 468. 3 Cruttwell v. Lye, 17 Ves. 385.

Hardy v. Martin, 1 B. & C. 419; Williams v. Williams, 2 Swanst. 253, and cases cited in note.

5 Per Parkes, C. J., in Mitcbell v. Reynolds, 1 P. Wms. 181.




On the Rights of a solvent retired Partner, and of joint

Creditors in case of the Bankruptcy of the continuing

Partner or Partners. Mr. Gow, in his useful treatise on the Law of Partnership, when treating of the consequences of a dissolution of a partnership by bankruptcy, observes, that what is to be considered joint property at the termination of a partnership is clear enough, when the partnership has continued down to the time of the bankruptcy, but that it sometimes happens that a dissolution or change has previously taken place in the members of the partnership. To adjust the clashing interests and claims of solvent partners and of different classes of creditors under such circumstances, is necessarily a matter of much nicety. We propose now to discuss this subject, so interesting in a mercantile community, in some of its bearings, and to examine the leading decisions. By way of setting the matter clearly before our readers, we will assume a case.

Darrell, Hunt and Gibbon were partners, in unequal shares, in a brewery concern carried on in the county of Dorset, and as such copartners were owners of freehold, copyhold, and leasehold property, as well as of divers chattels and debts. The copartnership was indebted to a considerable amount; the debts being both upon specialty and simple contract, and secured by mortgage, bond, and promissory notes, upon

which the partners were jointly and severally liable.

Darrell died, by which the partnership was dissolved, and his executor having determined not to be engaged in the concern, agreed to sell Darrell's share to Hunt.

Before we proceed to state the terms of the agreement between the executor of Darrell and Hunt, we will first examine wbat were the rights of the parties respecting the copartnership property, which was to become the subject of the agreement. Darrell's executor, or either of the surviving partners, might have required that the whole of the partnership property should be sold, and that the proceeds should be first applied in payment of the partnership debts; and that the surplus, if any, should be divided between them according to their respective shares,

and that any deficiency should be made up by them in the like proportions. The right which each or any of the three parties undoubtedly had to have the whole of the partnership assets applied in satisfaction of the partnership liabilities, was a most important one, for it constituted the best protection against any future liability.

The agreement between the executor of Darrell and Hunt was in writing, and by it, in consideration of the sum of 10001., the executors agreed to sell and Hunt to purchase the share of Darrell in the copartnership property, subject nevertheless to and charged with a proportionable part of the several debts and incumbrances affecting the copartnership real and personal estate. After the agreement the executor did not interfere with the copartnership property, but there was no conveyance or assignment of the share, and the purchase money was not paid.

Hunt and Gibbon changed the name of the firm from Darrell and Co. to Hunt and Gibbon, carried on the concern for upwards of two years, and then became bankrupt. The whole of the real and leasehold estates of the old firm remained in specie, as well as several of the debts due to that firm. Debts due from that firm to a large amount remained unpaid. Darrell left assets sufficient to discharge all his separate debts, as well as the debts due from the firm. The executor having been compelled to pay all the debts of the old firm, a question arose between him and the assignees of Hunt and Gibbon as to the application of the proceeds of the property of the old firm remaining in specie. It was contended by the assignees that the agreement between the executor and Hunt extinguished the right of the former to have such proceeds applied in satisfaction of the debts of the old firm ; inasmuch as by such agreement the executor's share of the property was made the separate estate of Hunt, and several support

of this view were cited, which we shall now shortly state and examine.

The first case is Ex parte Ruffin;? there Thomas Cooper and James Cooper were partners in a brewery concern. Thomas Cooper wishing to retire, assigned his share in the copartnership property and effects, in consideration of a gross

16 Ves, 119.

cases in

sum of money, to James Cooper, who covenanted to pay the partnership debts and to indemnify Thomas Cooper therefrom. The trade was for some time carried on by James Cooper alone, and he, about two years after the assignment, became bankrupt, whereupon the joint creditors of Thomas Cooper and James Cooper presented their petition that the partnership effects remaining in specie and possessed by the assignees of James Cooper, might be sold, and the proceeds applied in payment of their debts. Lord Chancellor Eldon, after an elaborate argument by counsel, entered fully into the question, and decided that the joint creditors had no equity by which they could appropriate the property of the old firm to themselves, and that Thomas Cooper was fully competent to vest the partnership property in James Cooper alone, and that such was the effect of the assignment made by him, and that he, after such assignment and the payment of the consideration money, had no equity to compel the property to be sold for payment of the partnership debts. The petition of the joint creditors was consequently dismissed. Lord Eldon admitted, that if Thomas Cooper had retained his right to have the partnership property sold, the joint creditors would, through his equity, have been entitled to what they asked. 1 It must be observed, that in this case the assignment was absolute, and not upon any trust or condition that the debts should be paid, nor even was it made subject to the payment of the debts of the firm.

Similar facts occurred in the case of Ex parte Fell, except that the petition was presented by the partner who had retired, and it prayed that the specific stock and debts of the old partnership might be first applied in satisfaction of the creditors of that partnership, but Lord Chancellor Eldon at once dismissed the petition, making, however, the very

important observation,maro It would be very easy to avoid this, upon the retirement of a partner, by assigning all the effects upon trust to pay the debts." This observation appears to show that the question depends upon the assignment or transfer being an absolute one, and without any reservation of the right of the retiring partner to have the copartnership debts discharged out of the joint assets.

See accordingly Ex parte Russell, 3 Mont. & Ayr. 192.

2 10 Ves. 347.

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