Downs v Collins
| Jurisdiction | England & Wales |
| Judgment Date | 08 March 1848 |
| Date | 08 March 1848 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 1228
HIGH COURT OF CHANCERY
See Lancaster v. Allsup, 1887, 57 L. T. 54.
[418] downs v. collins. Feb. 28, 29, March 1, 2, 8, 1848. [See Lancaster v. Allsup, 1887, 57 L. T. 54.] Articles of partnership between two partners as brewers, maltsters, &c., covenanting with each other that they and their respective executors and administrators would continue partners for twenty-one years, determinable upon the death of both partners, unless their respective representatives should agree to continue the business for the residue of the term; and empowering either partner to sell his share in the partnership property (offering it first to the other partner.), so that the purchaser should not be entitled to the possession of the partnership property until the expiration of the partnership, without the consent of the other partner; (1) See Baynton v. Hooper^ 10 Beav, 168, where all the cases on the point are referred to. 6 HAKE, 419. DOWNS V. COLLINS 1229 empowering, also, each partner, either in his lifetime or under his will, to introduce one or more relations, being sons, brothers or nephews, into the partnership, to take all or a portion of his share, during the continuance of the partnership; and providing that, in case-of the death of either or both partners during the term, after having introduced such relation, the person so introduced should be considered as the original partner; providing also, that, in case of the death of either partner during the term without having introduced such relation, the business should be carried on by the surviving partner, and the executors, administrators or trustees of the deceased partner; but making no provision for the case (which happened) of the death of one partner during the term, and his executors or administrators refusing to be concerned in the business with the surviving partner, and calling for an immediate dissolution, and a sale and distribution of the partnership property, the surviving partner not consenting to such dissolution or sale: Held, in a suit by the executors of the deceased partner against the survivor for a dissolution, that the provisions in the articles for the continuance of the partnership during the term of twenty-one years could not be enforced in equity by way of specific performance of the partnership contract against the representatives of a deceased partner, either .by way of relief in a suit in which such surviving partner was Plaintiff, or by way of protection in a suit in which he was Defendant; and, inasmuch as the articles could not be so enforced, the Plaintiffs, the executors of the deceased partner, repudiating the partnership, were entitled to a decree for a dissolution ; but that such relief would be given to them in equity, subject to any legal right which the surviving partner had, to recover damages against the executors of the deceased partner for a breach of the covenants contained in the articles ; and that the amount of any damages which might be recovered in such an action must be added to the credit side of the account of the surviving partner, to be taken under the decree. The option reserved to the executors of the deceased partner to enter into the partnership with a surviving partner must be accompanied by the obligation on the part of the surviving partner to admit them; and, unless the option be confined to the representatives of the partner who shall die first, the surviving partner must have the option of entering into the partnership with the representatives of the deceased partner, with the same accompanying obligation on their part to admit him. Specific performance of a partnership contract for an absolute term of years, leaving undefined the amount of the capital, and the manner in which it is to be provided, the mode of carrying on the business being discretionary, cannot be enforced in a Court of Equity; and the Court, being unable to enforce the entire contract, will not enforce it in part, as against the representatives of a deceased partner, by refusing them a decree for the dissolution of the partnership and the sale of the property, which had, under the contract, been specifically devoted to the partnership business. Edward Collins and John Downs, brewers, lightermen, maltsters and corn dealers at Eichmond, entered into articles of partnership, dated the 29th of December 1840. The articles recited that they had carried on the said business in partnership, since the 24th of June 1837, without regular articles ; that they were lawfully or equitably seised or possessed, in equal shares as tenants in common, of and in the brewhouse, malting-house and premises in Kichmond aforesaid, in which the said trades and businesses had been carried on, and also of and in divers freehold and leasehold public-houses and premises in Richmond aforesaid, and elsewhere in the counties of Surrey and Middlesex, which were used by the said Edward Collins and John Downs in the way of the trades or businesses of the [419] partnership, and were particularly enumerated in a schedule to the said articles ; and that the said Edward Collins and John Downs were also possessed, as part of their partnership property, in equal shares, of the implements and utensils of trade, plant, machinery, live and dead stock, book debts, and other articles and things belonging to the said trades and businesses; and that the said Edward Collins and John Downs had advanced certain sums for the purposes of the said partnership, and had agreed that the partnership should be 1230 DOWNS V. COLLINS 6HABE.420. continued for the time, and upon the terms and conditions thereinafter expressed. The articles then witnessed that the said Edward Collins and John Downs did each of them, for himself, his heirs, executors and administrators, covenant and agree with the other of them, his executors and administrators, in the manner following (that is to say) :-1. That the said Edward Collins and John Downs respectively, and their respective executors and administrators, shall and win continue to be partners in the said trades or businesses of brewers, maltsters and dealers in coals, and all matters, transactions, dealings and things relating thereto, for the term of twenty-one years from the 24th of June 1837, upon the terms and conditions thereinafter contained, subject, nevertheless, to be sooner determined, pursuant to the provisions in that behalf hereinafter contained; but, upon the death of both of the said parties, the said partnership shall be dissolved and determined, unless the representatives of the deceased partners respectively shall, within the space of two calendar months after the decease of the partner who may survive, agree to continue the same during the then residue of the said term of twenty-one years. 3. That all the said brewing-house, malting-house, public-houses and premises shall, at all times during the continuance of the said partnership, be kept and used as partnership property, but shall nevertheless belong [420] to the said partners in equal portions as tenants in common, and be considered as real estate; and the said implements and utensils of trade, plant, machinery, live and dead stock, book debts, and other articles and things belonging to the said trades or businesses, shall belong to the said partners as partnership property, in equal shares as tenants in common. 4. That the profits and benefit arising from the said trades or businesses, and also the rents of the said public-houses and premises, and the monies, goods, debts, estates and effects whatsoever, which . from time to time shall be in or due or belonging to the said partnership, shall, at all times during the said partnership, belong to the said parties in equal shares and proportions. 5. Rents, taxes, disbursements and losses, during the partnership, to be paid and borne out of the profits; and, in case of deficiency, by the said partners, in equal shares, out of their respective separate property. 6. John Downs to have the sole control and management, and Edward Collins to act and assist under his directions; but this clause not to apply to any other partner to be introduced by John Downs. 10. Neither of the said parties, without the consent of the other, to enter into contracts for purchasing or renting any house or building, or sign the certificate of any bankrupt, or compound, release or discharge any debt which shall be due or owing to the partners, except such sums only as shall be bond fide brought into the cash of the partnership. 11. Each partner to be answerable for, and make good to the cash of the partnership, all sums of money which he shall actually receive, or for which he shall, without such consent as aforesaid, give any receipt or discharge, or sign any certificate, at such time as he shall not be the sole surviving or sole acting partner. 13. The premiums of apprentices to be taken by the parties, or either of them, to be deemed part of the capital of the joint stock, and allowances to be made to the [421] party boarding and lodging such apprentices; and in case of the death of either of the said partners during the term of any such apprenticeship, the survivor of the said partners to keep and maintain every such apprentice until the end of his apprenticeship, and to be allowed for the same out of the partnership effects. 14. Each of the partners, his executors and administrators, to have access to all the partnership books, notes, securities, writings, &c., without hindrance or denial from or by the other of them, his executors or administrators, and the same not to be carried away from...
To continue reading
Request your trial
-
Labouchere and Others v Tupper and Others
...If there was a contract that must l)e specifically performed, if it is broken, then damages could be sued for the breach, Downs v. Collins (6 Hare 418). Such a stipulation as is contained in [215] this deed of partnership, requiring the substitution of another shareholder, has already been ......
-
Bewley v Hancock
...& War. 80), Dietrichsen v. [401] Cabburn (2 Phil. 52), Hills v. L'roll (2 Phil. 60; and see 1 De G. Mac. & G. 627 n.), Downs v. Collins (6 Hare, 418), Henderson v. Easm (17 Q. B. Rep. 701), M'Mahon v. Burchell (2 Phil. 127). Jan. 18, 1856. the lord chancellor [Granworth]. The great question......