BIRD, V. C.

Bill for a dissolution of partnership and for an accounting by John Dobbins against James N. Tatera. Decree for dissolution granted, and for accounting.

Scovel & Harris, for complainant.

Bergen & Bergen, for defendant.

BIRD, V. C. The parties to this suit, in the year 1885, entered into an agreement in writing, in and by which a copartnership was formed under the name of John Dobbins & Co. In the agreement they assumed the name to their business, "The Real Estate, Insurance and Collecting Agency." The profits were to be equally divided between them. The time during which the partnership was to continue was expressed in these words: "If thesaid James N. Tatem shall survive the said John Dobbins, then the lawful heirs of the said John Dobbins shall continue to draw the said one-half interest until the sum of five thousand dollars shall have been paid them; then the entire business shall be Tested in the said James N. Tatem, his heirs or assigns forever. If the said John Dobbins survive the said James N. Tatem, then the whole interest of the said business shall revert to the said John Dobbins, his heirs or assigns." Until March, 1892. the business was carried on harmoniously. In the said month of March, Tatem called at the residence of Dobbins, and gave him to understand that he was desirous of a dissolution. Dobbins, being eick, asked Tatem to postpone the further consideration of the matter until he should be better able to converse with him about it. About the first of the mouth of May following, Dobbins called at their place of business, and had an interview with Tatem respecting their business affairs, and upon the subject of dissolution. They met again upon the 9th of May at their place of business, at which time the matter was again considered. They agreed to meet again upon the 12th of May, when they would settle upon the terms of dissolution, and would dissolve; however, the meeting so agreed upon for the 12th did not take place. On the 20th of the same month Tatem wrote Dobbins a letter, in which he said, "I will, on and after the 21st instant, do business in my own name, at my own office." The office referred to was the same place at which the partners had formerly conducted their business. On the 7th of June, 1892, Dobbins filed his bill, among other things setting up the facts above referred to, praying that such partnership may not be dissolved, and that the said Tatem may be compelled to account for all of the business done during the continuance of the said term. Notwithstanding the prayer of the bill is that the said partnership may not be dissolved, yet the argument proceeded upon the ground, and with the apparent understanding on both sides, that a dissolution was the inevitable product of this proceeding. On this branch of the case the only point discussed by counsel was with reference to the time when it should be decreed that the dissolution should actually take effect; Dobbins' counsel insisting that there was no dissolution before the filing of the bill, while Tatem's counsel insisted that it actually took place on the 12th of May preceding the filing of the bill, and, if not, then, in contemplation of the law, on the 21st, on and after which date Tatem gave notice to Dobbins that he would do business in his own name.

It was insisted upon the part of Tatem's counsel that this was a partnership at will, and that it could be dissolved at the pleasure of either of the parties. It is upon this theory, doubtless, that he felt sure of his footing when he said if the dissolution did not take place upon the 12th of May, it certainly did upon the 21st. according to his notice to his partner. This Insistment makes it necessary to inquire whether or not this was a partnership at will. The reading of the above abstract from the written agreement. I think, must satisfy that it was not a partnership at will, although not for a fixed period of time, but fixed and certain by events which would inevitably transpire in the course of time. If Tatem survived, then, when he should have paid $5,000 to the heirs of Dobbins, the entire interest became Tatem's; if Dobbins survived, then such interest became his absolutely. The happening of either of these events, therefore, was agreed upon by the parties as the time when the partnership would be dissolved. The insistment that this was a partnership at will, and could therefore be dissolved upon simple notice by the one partner to the other, I think cannot be supported. Colly, Parte. p. 109; Burwell v. Mandeville's Ex'r, 2 How. 560; Scholetield v. Eichelberger, 7 Pet. 586; Burdon v. Bark us, 4 De Gex, F. & J. 42.

I will proceed upon the ground that this was a partnership for a term. If I am right in this, then 1 think the parties did nothing which would justify the court in regarding such act as working a dissolution. They undoubtedly had the power to agree upon a dissolution. But it is quite plain, taking the testimony of Tatem alone, that they did not come to terms of dissolution, although they had one or two interviews upon the subject for the purpose of agreeing upon the time when they would dissolve nod settle definitely upon the terms. The letter of Tatem shows that at the time he wrote it he did not regard the dissolution as complete until the 21st day of May. Although he now insists that it took place upon the 12th, yet he does not claim his right to all the profits of the business until the 21st,—the time fixed by himself for the dissolution. Since the argument proceeded upon the ground that the result of this controversy must be a dissolution, it is not my duty to consider whether or not the circumstances are such as to justify the court in declaring that it should continue, in order that Dobbins may have the benefit thereof. However, it will not be improper for me to add that the facts presented bring the case fairly within that line of cases in which courts almost universally dissolve partnerships, even though the period of time agreed upon for their continuance has not expired.

It remains for me to determine the time when dissolution should take place, and the liabilities of the parties to each other. It is my judgment that the relations continued, in the eye of the law, up to the period of the filing of the bill. This being so, Tatem must account for the profits received by him to that date. One of the prayers is that Tatem shall account for the entire business from the commencement thereof until the present time. There has been no showing whatsoever to justify the court in requiring this. The agreement simply stipulates that the profits of the business shall be equally divided between the parties thereto. No time was fixed, by agreement or otherwise, when the profits should be ascertained, and the division take place. It appears, however, from the testimony that from the commencement and through the whole period oftime such divisions of profits were made monthly, except, perhaps, in the absence of Dobbins. So far as this point has been spoken of by the parties, these settlements took place at the office where the books of the concern were. The books were always open to the inspection of Dobbins. He enjoyed equal privileges in the office, and with everything that belonged to or appertained to the concern, with Tatem. When these settlements and divisions of profits took place, Tatem frequently would submit short statements of his receipts and disbursements, and hand them, with his check, to Dobbins, it does not appear that Dobbins ever challenged these statements, or the amount of the check handed him by Tatem; and now. notwithstanding this controversy has been pending for several months, there is no suggestion of surprise or mistake or error founded upon any fact. I cannot believe that when such a case is presented the most fastidious or scrupulously exact would say that Tatem should be obliged to review the business transactions between him and his partner during the last seven years for the simple purpose of as certaining whether there was or was not an error or mistake somewhere. When a partner has equal rights and equal opportunities to ascertain the situation of affairs, and does not embrace them until a long period of time has elapsed, he will not be heard to challenge the correctness of what has been done and assented to by him without showing fraud or mistake. The resolution of courts against opening accounts under such circumstances is greatly strengthened by the fact that settlements have been made from time to time, and accounts submitted, without objection or speedy Investigation by the complaining party. I will advise a decree dissolving the partnership, and requiring the defendant to account for one half of the profits of the business up to the time of filing the bill. The assets will be chargeable with the costs.