Gambar halaman
PDF
ePub

held at

or at any adjournment thereof, with all the powers I should possess if personally present, hereby revoking all previous proxies.

18

(Witness.)

(169.)

(Signature.)

PROXY, WITH AFFIDAVIT OF OWNERSHIP, IN USE IN NEW YORK.

KNOW ALL MEN BY THESE PRESENTS, That I,

constitute and appoint

do hereby

my attorney and agent, for me and in

my name, place, and stead to vote as my proxy at any election of directors of the according to the number of votes I should be entitled to vote if then personally present.

IN WITNESS WHEREOF, I have hereto set my hand and seal, this one thousand eight hundred and

day of

Signed, sealed, and delivered in presence of

(Signature.)

(Seal.)

I do swear (or affirm) that the shares on which my attorney and agent in the above proxy is authorized to vote do not belong, and are not hypothecated, to the said company, and that they are not hypothecated or pledged to any other corporation or person whatever; that such shares have not been transferred to me for the purpose of enabling me to vote thereon at the ensuing election, and that I have not contracted to sell or transfer them upon any condition, agreement, or understanding in relation to my manner of voting at the said election.

(Signature.)

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

KNOW ALL MEN BY THESE PRESENTS, That I,

do authorize, constitute, and appoint

of

to receive from the (name

of the company) the dividend now due to me on all stock standing to my name on the books of the said company, and receipt for the same; hereby ratifying and confirming all that may lawfully be done in the premises by virtue hereof.

WITNESS my hand and seal, this

18

day of

(Signature.) (Seal.)

Signed, sealed, and delivered in the presence of

CHAPTER XX.

PARTNERSHIP.

SECTION I.

WHAT A PARTNERSHIP IS.

When two or more persons combine their property, labor, or skill, for the transaction of business for their common profit, they enter into partnership. Sometimes the word "firm" is used as synonymous with partnership; sometimes, however, it means only the copartnership name.

A single joint transaction, out of which, considered by itself, neither profit nor loss arises, will not create a partnership. If a joint purchase be made, and each party then takes his distinct and several share of the goods, this is no partnership.

Any persons competent to transact business on their own account may enter into partnership for that purpose.

SECTION II.

HOW A PARTNERSHIP MAY BE FORMED.

No especial form or manner is necessary. It may be by oral agreement, or by a written agreement, which may have a seal or not. But the liability and authority of the partners begin with the actual formation of the partnership, and do not wait for the execution of any articles. In general, if there be an agreement to enter into business, or into some particular transaction, together, and share the profits and losses, this constitutes a partnership, which is just as extensive as the business proposed to be done, and not more so. The parties may agree to share the profits in what proportion they choose; but in the absence of any agreement, the law presumes equal shares.

They may agree as to any way of dividing the losses, or even that one or more partners alone shall sustain them all, without loss to the rest. And this agreement is valid as between themselves; but it will not protect those partners who were to sustain no loss from responsibility to third parties, unless the third parties knew of this agreement between the partners, and gave credit accordingly.

If A, B, & C, being partners, agree that A should not lose any thing by their business, and a person knowing this bargain dealt with the firin on the credit of B & C, he could not call on A. But an agreement exempting partners from loss generally, or from loss beyond the amount invested, will only operate between the partners, unless it can be shown that the third party not only knew the agreement, but contracted with the firm on the basis of this agreement. And, generally, stipulations in articles of copartnership limiting the power of a partner are not binding on third parties who are ignorant of them. Each partner is absolutely responsible to every creditor of the copartnership for the whole amount of the debt. And, if thereby obliged to suffer loss, his only remedy is against the other partners.

Although partners may agree and provide as they will in their articles, a long neglect of these provisions will be regarded as a mutual waiver of them.

[ocr errors]

Persons may be liable as partners to third parties or strangers, who are not partners as between themselves. Whether they are partners as to each other would generally be determined by the intention of the parties, as drawn from their contract, whether oral or written, under the ordinary rules of evidence and construction. But whether one is liable as a partner to a person who deals with the firm must depend in part upon his intention, but more upon his acts; for if by them he justifies those who deal with the firm in thinking him a partner in that business, he must bear the responsibility; as if he declare that he has a joint interest in the property, or conducts the business of the firm as a partner, accepting bills, or suffers his name to be used upon cards, or in advertisements, or on signs, or in any similar manner. The declarations or acts of one person cannot, however, make another person liable as partner, without co-operation or consent, by word or act, on his part. The rule is this: that one who thus holds himself out as a partner, when he really is not one, is responsible to a creditor who on these grounds believed him to be a partner; but not to one who knew nothing of the facts, or who, knowing them, knew also that this person was not a partner.

A secret partner is one who is actually a partner by participation of profit, but is not avowed or known to be such; and a dormant partner is one who takes no share in the conduct or control of the business of the firm. Both of these are liable to creditors (even if the creditors did not know them to be members of the firm), on the ground of their interest and participation in the profits, which constitute, with the property of the firm, the funds to which creditors may look for payment. A nominal partner is one who holds

himself out to the world as such, but is not so in fact. He is liable to creditors of the firm, on the ground that he justifies them in trusting the firm on his credit, and, indeed, invites them to do so, by declaring himself to be a partner.

The principal test of membership in a mercantile firm is said to be the participation in the profits. Thus, if one lend money to be used in a business, for which he is to receive a share in the profits, this would make him a partner; and if he is to receive lawful interest, and, in addition thereto, a share of the profits, this would generally make him liable as a partner to a creditor of the firm.

Sometimes a clerk or salesman, or a person otherwise employed for the firm, receives a share of the profits instead of wages. Formerly it was held, that if such person received any certain share, say "one-tenth part of the net annual profits," this made him liable as a partner; but if he received "a salary equal in amount to one-tenth of the net profits," this did not make him a partner. Now, the courts look more at the actual intention of the parties, and their actual ownership of an interest in the funds of the partnership, and are not governed by the mere phraseology used. If, in fact, he works for wages, although these wages are measured by the profits, he is no partner, and therefore not liable for the debts, as every partner is.

Hence, factors and brokers for a commission on the profits, masters of vessels who engage for a share of the profits, or seamen employed on shares in whale-ships, are none of them partners.

A partnership usually has but one business name; but there does not seem to be any legal objection to the use of two names, especially for distinct business transactions; as A B & Co. for general business, and the name of A C & Co. for the purpose of making or indorsing negotiable paper, or for carrying on some particular business.

SECTION III.

HOW A PARTNERSHIP MAY BE DISSOLVED.

If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding.

If either partner were to undertake to assign his interest, for the purpose of withdrawing from the firm, against the will of the partners, without good reason, and in fraud of his express agreement, a court of equity would interfere and prevent him. For the assignment of a partner's interest, or of his share of the profits, operates at once a dissolution of the partnership.

Such assignment may transfer to the assignee the whole interest of the assignor, but cannot give him a right to become a member of the firm. There seems to be an exception to this rule where the partnership is very numerous, and the manner of holding shares, by scrip or otherwise, indicates the original intention of making the shares transferable. Such a partnership is in effect a joint-stock company; which form of association is not very common here, because incorporation is better, and is easily obtained.

Death of a general or even of a special partner, operates a dissolution; and the personal representatives of the deceased do not take his place, unless there be in the articles an express provision that they shall. And such provisions are construed as giving the heirs or personal representatives the right of electing whether to become partners or not. If either party is unable to do his duty to the partnership, as by reason of insanity or a long imprisonment, or if he be guilty of material wrong-doing to the firm, a court of equity will decree a dissolution. And if the original agreement were tainted with fraud, the court will declare it void from its beginning.

Whenever a court of equity decrees a dissolution of the partnership, it will also decree that an account be taken between the partners, if requested by either partner. And if necessary to do justice, it will decree a sale of the effects and a distribution of the proceeds, after a consideration of all the facts of the case and the whole condition of the firm. Such a decree may be made if a partner die or become bankrupt.

If the whole interest of a copartner is levied upon and sold on execution, this makes a dissolution, and the purchaser becomes, -like every other assignee of a partner, not a partner, but only a tenant in common (that is, a joint owner) with the other partners; but if the levy and sale are only of a part, which may be severed from the rest, this may not operate a dissolution except as to that part.

If one partner retires, this operates in law a dissolution, and the remaining partners constitute in law a new firm, although in fact the remaining partners frequently continue and go on with their business, under the name of the old firm, with or without new members, as if it were the same firm.

« SebelumnyaLanjutkan »