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is to take the proper quantity, is d is agent for buying it.-Brownfeld v. good delivery, at least, where the article Johnson, 128, Pa. 254, 6 L. R. A. 48, 18 is ordered from the correspondent, who Atl. 543.

Section 2743. Expenses of Transportation: One who sells personal property must bring it to his own door or other convenient place, for its acceptance by the buyer, but further transportation is at the risk and expense of the buyer. 1887 R. S. Sec. 3251.

Section 2744. Notice of Election as to Delivery: When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of option is waived. 1887 R. S. Sec. 3249.

Section 2745. Warranty of Title to Personal Property: One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unincumbered title thereto. 1887 R. S. Sec. 3245.

of chattels in his possession warrants ADMISSIONS OF ASSIGNOR: the title to the same by implication.---PURCHASER IN GOOD FAITH: The Miller v. Van Tassel, 24 Cal. 459. Paradmissions or statements of the as- sons on Contracts (7th Ed.), vol. 1, p. signor of chattels in derogation of his 615 and note. The Code Commissoners title thereto, made prior to his transfer of California in a note to Sec. 1765 of of the same, cannot be introduced in the Civil Code which is identical with evidence against the title of his as- the above section say: "This section signee who purchased the same in good is a departure from the American rule, faith, without knowledge of such state- but is in accord with recent English ments or admissions.—Deasey v. Thur- decisions. Under this section a man, 1 Idaho 775.

ranty of title is implied from the sale WARRANTY OF TITLE: The whether the goods are in possession of American authorities are almost uni- the vendor or of third parties at the versally to the effect that the vendor time of the sale." No cases are cited.

Section 2746. Warranty on Sale of Sample: One who sells or agrees to sell goods by sample, thereby warrants the quality of the bulk to be equal to the sample. 1887 R. S. Sec. 3246.

them and bring an action

the A warranty implying sale by sample breach of warranty.-Hughes v. Bray, is in judgment of law a warranty that 60 Cal. 284. The warranty implied from the bulk of the commodity corresponds sale by sample is an exception to the in quality with the sample.--Beebee v.

la w rule of caveat emptor, Robert, 12 Wend. 413, 27 Am. Dec. 132; and stands on no principle, though well Boorman v. Jenkins, 12 Wend. 566, 27 established (per Bronson, C. J.).--. Am. Dec. 158; Dickinson v. Gay, Al- Moses v. Mead, 1 Denio 378, 43 Am. Dec. len 29, 83 Am. Dec. 656; Foot v. Bent

676.

See contrary to this general rule. ley, 44 N. Y. 166, 4 Am. Rep. 652. Where -Boyd v. Wilson, 83 Pa. St. 319, 24 the goods are inferior in quality to the Am. Rep. 176; Frayley v. Bispham, 10 sample, the purchaser may accept Pa. St. 320, 51 Am. Dec. 486.

Section 2747. Marks of° Quality and Quantity: One who sells any article to which there is affixed or attached statement or mark to express the quantity or quality thereof, thereby warrants the truth thereof. 1887 R. S. Sec. 3247.

Section 2748. Warranty of Provisions tor Domestic Use: One who makes a business of selling provisions for domes

War

for

common

tic use, warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome. 1887 R. S. Sec. 3248.

warranty of soundness is implied on In the sale of provisions for domestic sale of provisions bought to be sold use there is an implied warranty that again, though it is otherwise if sold they

sound and wholesome.- for immediate consumption.—Moses v. Van Bracklin v. Fonda, 12 John. 468, 7 Mead. Denio 378, 43 Am. Dec. 676 and Am. Dec. 339. See note to Emerson v. note. Bringham (Mass.), 6 Am. Dec. 117. No

are

CHAPTER CXII.
PARTNERSHIP.

Section.

SPECIAL PARTNERSHIP. 2749. Formation of special partnership. 2750. Of whom may consist. 2751. Certificate, what must state, 2752. Certificate to be acknowledged

and recorded; effect of false

statements. 2753. Affidavit of each partner must be

filed. 2754. When special partnership is

formed. 2755. Certificate must be published. 2756. Affidavit of publication, effect

when filed. 2757. Renewal of special partnership. 2758. Who to do business. 2759. Rights of special partners. 2760. Special partners may loan to

partnership. 2761. General partners may sue and be

sued alone. 2762. Special partner not to withdraw

capital. 2763. Interest and profits of special

partner. 2764. Result of withdrawing capital. 2765. Transfer, when void. 2766. Liability of general partners. 2767. Liability of special partner.

Section.
2768. When liable as a general partner.
2769. Who may not question existence

of special partnership.
2770. When special partnership be.

comes general. 2771. New special partners, how ad

mitted. 2772. Dissolution of special partnershi;). 2773. Name of special partner not to

be used in firm name.

MINING PARTNERSHIP. 2774. When mining partnership exists. 2775. No agreement necessary. 2776. Profits and losses, how shared. 2777. Liens of partners and creditors. 2778. Mining ground is partnership

property. 2779. Partnership not dissolved by sale

of interest. 2780. Purchaser takes subject to lien,

when. 2781. Purchaser takes with notice of

lien, when. 2782. No member can bind partnership

except, when. 2783. Majority shares govern conduct

of business. 2784. Prospecting contracts, when con

structive notice.

SPECIAL PARTNERSHIP.

note.

Section 2749. Formation of Special Partnership: A special partnership may be formed by two or more persons in the manner and with the effect prescribed in this Subdivision, for the transaction of any business except banking or insurance.

1887 R. S. Sec. 3270; 1885, 13th Ses. some of its members to bear losses is p. 148.

restricted to a defined amount. -Am. & A limited (or special) partnership is Eng. Enc. of Law, Vol. 13, p. 803 and a partnership in which the liability of

Section 2750. or Whom May Consist: A special partnership may consist of one or more persons called general partners, and one or more persons called special partners. 1887 R. S. Sec. 3271; 1885, 13th Ses. p. 148.

Section 2751. Certificate, What Must State: Persons desirous, of forming a special partnership must severally sign a certificate stating :

to

a

as

First.

The name under which the partnership is to be conducted; Second. The general nature of the business intended to be transacted;

Third. The names of all the partners, and their residences, specifying which are general and which are special partners;

Fourth. The amount of capital which each special partner has contributed to the common stock;

Fifth. The periods at which such partnership will begin and end. 1887 R. S. Sec. 3272; 1885, 13th Ses. P. known in the community, although it 148.

consists only of a surname and initials. NAME: The "full name" of a mem Laflin & Rand Powder Co. v. Steytler, ber of a limited partnership is signeci 146 Pa. 434, 14 L. R. A. 690, 28 Atl. 215..

statement required, when See discussion of requirements of this signed in the form habitually used by section in Am. & Eng. Enc. of Law, Vol. him in business and by which he is 13, page 808 and note.

Section 1752. Certificate to be Acknowledged and Recorded, Effect of False Statements: Certificates under the last Section must be acknowledged by all the partners, before some officer authorized to take acknowledgments of deeds, and recorded in the office of the recorder of the county, in which the principal place of business of the partnership is situated, in a book to be kept for that purpose, open to public inspection; and if the partnership has places of business situated in different counties, a copy of the certificate, certified by the recorder in whose office it is recorded, must be recorded in like manner in the office of the recorder in every such county. If any false statement is made in any such certificate all the persons interested in the partnership are liable, as general partners, for all the engagements thereof.

1887 R. S. Sec. 3273; 1885, 13th Ses. p. 148.

Section 2753. Affidavit of Each Partner Must be Filed: An affidavit of each of the partners, stating that the sums specified in the certificate of the partnership as having been contributed by each of the special partners, have been actually and in good faith paid, must be filed in the same office with the original certificate. 1887 R. S. Sec. 3274; 1885, 13th Ses. shall be liable as a general partner, a

partnership was formed by a certificate AFFIDAVIT OF PAYMENT OF and affidavits dated and filed Decem CAPITAL: Where the contribution or ber 23, 1870, to commence January 1, a special partner consists of a stock 1871; the affidavits and certificate of groceries or notes, an affidavit that, stated that the special partner's capihe "Has contributed to such firm the tal had been actually and in good faith sum of $12,000, which said sum has paid in cash; in fact, the special partner been actually and in good faith con- gave his checks for the amount, dated tributed to the business," contains December 31, 1870, which were pairl false statement and is not sufficient to January 2, 1871. Held, that the state. relieve such special partner from lia- ments were false with in the meaning bility as a general partner.-Holliday v. of the statute, and the special partner Union Bag & Paper Co. 3 Colo. 342. was liable as a general partner for the Under a statute for the formation of debts of the firm.--Durant V. Abenlimited partnerships, which requires droth, 69 N. Y. 148, 25 Am. Rep. 158. On the capital of the special partner to be the formation of a limited partnerpaid in actual cash on the formation, ship, the special partner gave his certiand provides that if there is any false fied check for $10,000, the amount of his statement in the certificate and affi- capital, which was deposited to the davits of formation, the special partner credit of the new firm. Afterwards,

p. 148.

a П

p. 149.

on the same day, the firm gave him in the bank. Held, that this was not their checks on the same bank for sorne an actual cash contribution as required $7,600, the amount appearing to his by the statute, and the special partner credit on the books of the former firm, was liable as a general partner.-Linecomposed of the same members, which weaver v. Slagel, 64 Md. 465, 54 Am. was paid from the $10,000 deposited by Rep. 775, 2 Atl. 693. the firm, they having no other funds

Section 2754. When Special Partnersbip is Formed: No special partnership is formed until the provisions of the last five Sections are complied with. 1887 R. S. Sec. 3275; 1885, 13th Ses. A. 386, 18 Atl. 16. A complaint which

does not allege that the certificate reSTATUTORY REQUIREMENTS quired by law has been made and filed person who seeks exemption from the does not allege the existence of a liability of a general partner must special partnership.-Prince v. Lamb show a strict compliance with the re- (Cal.), 60 Pac. 689. See article on limiquirements of the statutes providing ited partnership in Am. & Eng. Ency. for special partnerships.—Holliday V. of Law, Vol. 13, p. 802. Also Rouse v. Union Bag & Paper Co. 3 Colo. 342; Detroit Cycle Co. (Mich.), 38 L. R. A. Van Horne v. Corcoran (Pa.), 4 L. R. 794, 69 N. W. 511.

Section 2755. Certificate Must be Published: The certificate mentioned in this Chapter or a statement of its substance, must be published in a newspaper printed in the county where the original certificate is filed, and if no newspaper is there printed, then in a newspaper in this State published nearest thereto. Such publication must be made once a week, for four successive weeks, begining within one month from time of filing the certificate. In case such publication is not so made, the partnership must be deemed general. 1887 R. S. Sec. 3276; 1885, 13th Ses. the notice of its formation. The only

effect of the failure to publish the reEFFECT OF FAILURE TO PUB- quired notice

that partnership LISH The legal existence of a spe- should be deemed general.-Tracey V. cial partnership does not depend upon Tuffy, 134 U. S. 206, 33 L. Ed. 879.

Section 2756. Affidavit of Publication, Effect When Filed: An affidavit of the making of the publication mentioned in the preceding Section made by the printer, publisher or chief clerk of the newspaper in which such publication is made, may be filed with the county recorder with whom the original certificate was filed, and is presumptive evidence of the facts therein stated. 1887 R. S. Sec. 3277; 1885, 13th Ses. p. 149.

Section 2757. Renewal of Special Partnership: Every renewal or continuance of a special partnership must be certified, recorded, verified and published in the same manner as upon its original formation.

p. 149.

was

1887 R. S. Sec. 3278; 1885, 13th Ses.

p. 149.

The renewal or continuance of a limited partnership operates merely as an extension for the designated period of the partnership already formed, and in practical effect is the same as such time had been embraced within the terms of the original formation.Fifth Ave. Bank v. Colgate, 120 N. Y. 381, 24 N. E. 799, 8 L. R. A. 712 and

note. The impairment of the capital stock furnished to a limited partner. ship by a special partner, without his fault, does not prevent the renewal or continuance of the partnership, and a statement in the certificate or affidavit of renewal that the capital is unimpaired is mere surplusage, which, although false does not render him liable cis a general partner to one who has no: been induced thereby to give credit to

the firm.--Fifth Ave. Bank v. Colgate, 64 Md. 465, 54 Am. Rep. 775, 2 Atl. 693. supra. See also Lineweaver v. Slagle,

Section 2758. Who to Do Business: The general partners only have authority to transact the business of a special partnership.

1887 R. S. Sec. 3279; 1885, 13th Ses. bia Land & Cattle Co. v. Daly (Kan.), p. 149.

26 Pac. 1042. A contract made in the SPECIAL PARTNER HAS NO AU- name and for the benefit of those who THORITY A special partner has no afterwards become its members is enauthority to transact any business on forceable as a contract made by them account of partnership, nor to make as general partners.-Abbott v. Hap. the partnership liable to his contracts good (Mass.), 5 L. R. A. 586, 22 N. E. as such special partner only.-Colum- 907.

Section 2759. Rights of Special Partners: A special partner may at all times investigate the partnership affairs, and advise his partners or their agents, as to their management. 1887 R. S. Sec. 3280; 1885, 13th Ses. p. 149.

Section 2760. Special Partner May Loan to Partnership: A special partner may lend money to the partnership, or advance money for it, and take from it security therefor, and as to such loans or advances has the same rights as any other creditor; but in case of the insolvency of the partnership, all other claims which he may have against it must be postponed until all other creditors are satisfied. 1887 R. S. Sec. 3281; 1885, 13th Ses. p. 149.

Section 2761. General Partners May Sue and be Sued Alone: In all matters relating to a special partnership, its general partners may sue and be sued alone, in the same manner as if there were no special partners.

1887 R. S. Sec. 3282; 1885, 13th Ses. may be sued as joint partners for the p. 149.

debts of the firm.-Van Horn v. CorPersons who have failed to make Coran (Pa.), 4 L. R. A. 386, 18 Atl. 16. their

a limited partnership Section 2762. Special Partner not to Withdraw Capital: No special partner may under any pretense, withdraw any part of the capital invested by him in the partnership, during its continuance.

1887 R. S. Sec. 3283; 1885, 13th Ses. For discussion of this section see Am. p. 149.

& Eng. Ency. of Law, Vol. 13, p. 821. Section 2763. Interest and Profits of special Partner: A special partner may receive such lawful interest and such proportion of profits as may be agreed upon if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet subsequent losses. 1887 R. S. Sec. 3284; 1885, 13th Ses. p. 149.

Section 2764. Result of Withdrawing Capital: If a special partner withdraws capital from the firm contrary to the provisions of this Subdivision, he thereby becomes a general partner.

1887 R. S. Sec. 3285; 1885, 13th Ses. p. 149.

concern

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