The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-01-09
PARTNERSHIPS.


In the Court of Common Pleas the following
interesting opinion was delivered on Saturday
last by Judge Brewster:-
Common Pleas. In Equity. June Term, 1866.
No l6 Charles Page Us Joseph 4. Vdnkjrk
and z. d. Marshall.
This case was heard upon bill, answer, repli-
cation, and proofs. r
1t is partnership bill, the complainant pray
ing for dissolution, Injunction and receiver.
The bill charges that the complainant, ION
the 9Th day OF January, A. d. 1866, entered into
under the firm name of Vankirk & Company
Tor the purpose OF carrying on the business of
rol,iing n9lg and and manufacturing sheet brass, and
other metal tublngs and chandeliers, and gas
fixtures generally, without any fixed term or
limitation"
The bill then sets forth the amounts which
each par tner agreed to contribute towards the
capital of the firm, and the proportions in
which they we're to share the profits and losses.
The complainant further AYERS, that each part.
ner was to be at liberty to draw out of the con-
Cern the sum OF $4,000 per annum as q salary
which was to be charged to the expense ac-
count, and the complainant then sets out that
Joseph /. Vanktrk, having the exclusive con-
troll of the financial business OF the arm, was
guilty Of certain acts of misfeasance in fraud
of the complainant, which are specifically de-
scrlbed In twelve articles OF the bill, and which
viii be considered hereafter.
The complainant does not attach to his bill
copy of the partnership articles.
This is furnished by the defendants in their
answer.
The agreement thus exhibited to us contains
! several clauses IN addition to those reoited in
the bill.
By one of these it is declared that "the said
copartnership is to continue until dissolved
by mutual consent or until six months after
either partner shall have given to the others
| written notice of his desire and intention to
determine the same, In which latter case, at the
expiration of said six months, the partnerships
| to be dissolved and ended.n
| ANn fh0f nj 40 Rnh FnNy1H0
! that .-.-.
"In case of the termination or dissolution of
| the partnership in any other way than by death,
and dny differences shall arise balCeen he
said parties ita respect to The ,01nding up and
settlement of the business Of the partnership,
such differences shat be Submitted to an arbitrd-
! ton, = but in this latter case, each OF said
| partners shall choose an arbitrator"
Then follows clause by which 1t was de-
clared that it any two of said partners should
desire to purchase the interest OF a deceased or
retiring partner, they should be at liberty to do
SO; provided that nothing shall have occurred
TO weaken or impair the credit or business
standing OF said two partnersn
The defendants submit upon these clauses of
the agreement that the complainant, not having
given the six months notice to dissolve the
partnership, cannot come into Court with this
bill; and they furthermore contend with great
earnestness that the agreement providing for
an arbitration is the law OF the case by which
the complainant ls bound. The point, if sue
cessfuIly maintained, would put the complain
ant out OF Court. The defendants cite in sup
port of their position, SnodgrasS VS., Gayitt "a
Casey, 22l and Leech vs. Caldwell Legal In
telagence', Nov. 16, 1866, p. 364).
The complainant, on the other hand, contends
that no arbitrator can be appointed under the
articles until AFTER dissolution and that his
case Is saved by the proviso above quoted, "that
nothing shall have occurred to weak en- or i'm
pair the credit or business standing of said two
partners" and he insists that the admissions of
I the answer, that there had been three protests,
! and the evidence submitted, clearly established
his allegation, "that the credit and business
standing" of the firm have been weakened and
impaired.
The testimony on this branch of the case is
| however, very dIrect; that the protests referred
to were mere accidents which could hardly, in
any case, affect the credit of partnership; and
! that they did not in this instance impair the
| business standing OF the firm. Two of these
! protests occurred on the I'd OF June, 1866, and
the third and last on the l6th of the same
month. They were, together, for less than
$1,000. The book-keeeper, upon whom all the
partners relied to advise them of the maturing
| OF outstanding drafts, was sick and absent from
! the counting-room. A large amount of money
| was in bank, the drafts we're all promptly taken
up the morning succeeding the protests, and
proper explanations made to the holder Of the
! drafts and TO the banks.
II the compainants answer to these prelimi-
nary objections rested solely upon this matter
Of the drafts, should feel constrained, as to
this branch of the case, to decide against him.
An examination of the decisions upon this
! subject has, however, satisfied me that, not.
wlthstanding the stipulation requiring six
months notice of an intention to dissolve, and
! the clause providing for an arbitration, this
Court would, in proper case have undoubted
| jurisdiction to entertain q bill for dissolution
! aud receiver.
The objections of the defendants appear to
| lose sight of the clear and well-defned dstinc-
! tions between mere agreement to arbitrate and
| q stipulation constituting designated person
! the tribunal to determine certain questions
which may arise or may have arisen between
! the contracting parties. Where contract pro-
| vides for the determination of a contractors
| claims by the judgment OF a particular person.
| until he has spoken, no right arises which can
| be enforced at law or IN equity. This is the
vital point of the decisions cited by the
! defendants.
/ The English case of Scott vs.. Liverpool (2s
/ Law Journal Rep, n. s., Chanc. $50; De Gex
/ and Jones, S34) is to the same effect. And such
| an agreement was applied to existing actions
| and enforced in Hooper VS.. Hooper (29 Law
Journal Rep, N ST. Probate and Matrimonial,
! 59) by staying the suit, and by attachment in
Williams VS.. Lewis q Ellis and Blackburn, 929l.
1t is very true that this application of the law
may work great hardship in particular cases, OF
which Leech Vs. Caldwell may be a type. But
1T should always De borne In mind that this
result is not imputable TO the law. She simply
holds party here, as everywhere, to his con-
tract, and refers him to the tribunal of his own
free choice.
Case in which Court has given this effect to
mere agreement to arbitrate, and no such case
was cited by the learned and able counsel of the
defendants.
On the contrary, the distinction above ad-
verted 10 has Deen recognized in Snodgrass vs..
JaVitt and Scott VS. Liverpool, already ctted
and has been followed in Horton VS.. Sayers
and Norman Exchequer 64S), and In Cook VS..
| Catchpole (34 Law j, R.. 1865, N. s. Chancery,