PARTNERSHIP, contracts. An agreement between two or more persons, for
joining together their money, goods, labor and skill, or either or all of
them, for the purpose of advancing fair trade, and of dividing the profits
and losses arising from it, proportionably or otherwise, between them. 2
Bouv. Inst. n. 1435; Watson on Partn. 1; Gow on Partn. 2; see Civ. Code of
Lo. art. 2772; Code Civ. art. 1832; Forbes. Inst. of Scotch Law, part 2, B.
3, s. 3, p. 184; edit. Edin. 1722, 12mo.; Dolmat, Civ. Law, vol. 1, p. 85;
9. John. R. 488; Puffend. B. 5, c. 8; 2 H. Bl. 246; 1 H. Bl. 37; Ersk. Inst.
B. 3, t. 3, Sec. 18; Tapia, Elementos de Jurisp. Mercantil, p. 86; 5 Duv.
Dr. Civ. Fr. tit. 9, c. 1, n, 17; 4 Pard. Dr. Com. n. 966; 2 Bell's Com.
611, 5th ed.; Aso & Mann. Inst. B. 2, tit.
1. Sometimes partnership signifies a moral being composed of the
reunion of all the partners. 4 Pard. n. 966. As a partnership has a separate
existence as a person, it becomes liable to fulfill all its engagements, and
the partners are individually bound and responsible only on its default, as
sureties. 2 Bell's Comm. B. 6, c. 1, n. 4, p. 619, 5th ed.
2. Partnerships will be considered, 1st. In respect to their character
and extent, as they regard property. 2d. With relation to the number and
character of parties. 3d. As they are divided by the French code. 4th. As to
their creation. 5th. As to their object. 6th. As to their duration. 7th. As
to their dissolution. 8th. As to partnerships in Louisiana.
3.-Sec. 1. In respect to their character and extent, as they regard
property, partnerships maybe divided into three classes, namely: universal
partnerships; general partnerships; and limited or special partnerships. 1.
A universal partnership is one where the parties agree to bring into the
firm all their property, real, personal and mixed, and to employ all their
skill, labor, and services, in the trade, or business, for their common
benefit. This, kind of partnership is perhaps unknown in the United States.
5 Mason, R. 176.
4.-2. General partnerships are properly such, where the parties carry
on all their trade and business for their joint benefit and profit; and it
is not material whether the capital stock be limited or not, or the
contributions of the partners be equal or unequal. Cowp. 814. The game
appellation is given to a partnership where the parties are engaged in one
branch of trade only.
5.-3. Special partnerships, are those formed for a special or
particular branch of business, as contradistinguished from the general
business or employment of the parties, or of one of them. When they extend
to a single transaction or adventure only, such as the purchase and sale of
a particular parcel of goods, they are more commonly called limited
partnerships. The appellation is however given to both classes of cases
indiscriminately. Story, Partn. Sec. 75
6.-Sec. 2. When considered in relation to the number and character of
the parties, partnerships are divided into private partnerships and public
companies. 1. Private partnerships are those which consist of two or more
partners for some private undertaking, trade, or business.
7.-Sec. 2. Public companies are those where a greater number of
persons are concerned, and the stock is divided into a considerable number
of shares, the object embracing generally public as well as private
interests. This term is, however, perhaps loosely applied, as these
companies have for the most part the character of private associations. They
are either incorporated or not. The incorporated are to be governed by the
rules established in their respective charters. See Corporation. The
unincorporated are in general subject, to all the regulations of a common
private partnership.
8.-Sec. 3. In the French law, partnerships are divided into three
kinds, namely: 1. Partnerships under a collective name, that is, where the
name of the firm contains the names of all or some of the partners.
9.-2. Partnerships en commandite or in commendam; these are limited
partnerships, where one or more persons are general partners, and are
jointly and severally responsible with all their estates, and one or, more
other persons who furnish a part or the whole of the capital, who are liable
only to the extent of the capital they have furnished. The business is
carried on in, the name of the general partners. This species of
partnership, with some modifications, has been adopted in several of the
states of the American union. 3 Kent, Com. 34, 4th ed.; 2 Bouv. Inst. n.
1473, et seq.
10.-3. Anonymous partnerships are those in which all the partners are
engaged in the business, there is no social name or firm, but a name
designating the object of the association. The business is managed by
syndics or directors. Vide Poth. de Societe, h.t.; 5, Duv. Dr. Civ., Fr.
h.t.; Pardes. Dr: Com. h.t.; Code de Com. h.t.; Merl. Repert. h.t. In
Louisiana a similar division has been made. Civ. Code of Lo. h.t.
11.-Sec. 4. Partnerships are created by mere act of the parties; and
in this they differ from, corporations which require the sanction of public
authority, either express or implied. Aug. & Ames on Corp. 23. The consent
of the parties may be testified, either in express terms, as by articles of
partnership, or positive agreement; or the assent may be tacit, and to be
implied solely from the act of the parties. An implied or presumptive assent
has equal operation with one that is express and determined. And it may be
laid down as a general and undeniable proposition, that persons having a
mutual interest in the profits and loss of any business, or particular
branch of business, carried on by them, or persons appearing ostensibly to
the world as joint traders, are to be recognized and treated as partners,
whatever may be the nature of the agreement under which they act, or
whatever motive or inducement may prompt them to such an exhibition. 1 Dall.
269.
12. A community of property does not of itself create a partnership,
however that property may be acquired, whether by purchase, donation,
accession, inheritance or prescription. Civ. Code of Louis. art. 2777. Hence
joint tenants or tenants in common of lands, goods, or chattels, under
devises or bequests in last wills or testaments, and deeds or donations
inter vivos, and inheritances or successions, are not partners. Story,
Partn. Sec. 3.
13. Joint owners of ships are not, in consequence of such ownership, to
be considered as partners. Abbot on Ship. 68; 3. Kent, Com. 25, 4th ed.; 15
Wend. 187; and see Poth. De Societe, n. 2; 4 Pard. Dr. Com. n. 969; 17 Dur.
Dr. Fr. n. 320; 5 Duv. Dr. Civ. Fr. n. 33.
14.-The free and personal choice of the contracting parties is so
essentially necessary to the constituting of a partnership, that even
executors and representatives of deceased partners do not, in their
representative capacity, succeed to the state and condition of partners; 2
Ves. sen. 34; Wats. on Partn. 6; although a community of interest
necessarily exists between them and the surviving partners, until the
affairs of the partnership are wound up. 11 Ves. 3. When there is a positive
agreement at the commencement of the partnership, that the personal
representative or heir of a partner shall succeed him in the partnership,
the obligation will be considered valid. Coll. on part. B. 1; ch. 1, Sec.
11; Story, Partn. Sec. 5.
15.-Sec. 5. The object of the partnership must be legal. All
partnerships, therefore, which are formed for any purpose forbidden by law
or good morals, are null and void. But all the partners in such a
partnership are jointly liable to third persons who may contract with them
without a knowledge of the illegal or immoral object of the partnership.
Civ. Code of Lo. art. 2775; 5 B. & A. 341 2 B. & P. 371; 3 T. R. 454; Poth.
Oblig. by Evans, vol. 2, page 3; Gow on Partn. 8; Wats. Partn. 131.
Partnerships are not confined to mere commercial trade or business; but
generally extend to, manufactures and, to all other lawful occupations and
employments, or to professional or other business. They may extend to all
the business of the parties; to a single branch of such business; to a
single adventure; or to a single thing. But there cannot lawfully be a
partnership in a mere, personal office, especially when it is of a public
nature, requiring the personal confidence in the skill and integrity of the
officer. Story, Partn. Sec. 81; Colly. Partn. 31.
16.-Sec. 6. Partnerships may be formed to last for life, or for a
specific period of time; they may be conditional or indefinite in their
duration, or for a single adventure or dealing; this depends altogether on
the will of the parties. The period of duration is either expressed or
implied, but the law will not presume that it shall last beyond life. 1
Swanst. 521; 1 J. Wils. R., 181. When a particular term is fixed, it is
presumed to endure until the period has elapsed; when no term is fixed, it
is presumed to endure for the life of the parties, unless previously
dissolved, by the acts of one of them, by mutual consent, or by operation of
law. Story, Partn. Sec. 84. When no time is limited for the duration of a
general trading partnership, it is a partnership at will, and may be
dissolved at any time at the pleasure of any one or more of the partners.
17.-Sec. 7. A partnership may be dissolved in several ways: when the
partnership is formed for a single dealing or transaction, it follows that
it is at an end so soon as the dealing or transaction in which the partners
jointly engaged is completed. Gow on Partn. 268; Inst. Lib. 3, tit., 26, s.
6.
18. Where a general partnership is formed, either for a definite, or an
indefinite period of time, the causes which may operate a destruction of it,
are various. In the case of a partnership limited as to its duration, it
may, in the intermediate time, before the restricted period of its
termination arrives, be dissolved either by the death, the confirmed
insanity, the bankruptcy of all or one of the partners, or it may endure the
stipulated period, and expire with the effluxion of time; but where the
partnership is unlimited as to its existence, although in the instances of
death or bankruptcy, it is determined, yet if they do not intervene, any
partner may withdraw himself from it whenever he thinks proper. Code, lib.
4, t. 37, 1, 5.
19. Besides the causes above stated for a dissolution, a partnership,
limited or unlimited as to its duration, may be dissolved by the decree of a
court of equity, where the conduct of some or all of the partners has been
such as not to carry on the trade or undertaking on the terms stipulated;
Gow on Partn. 269; or by the involuntary or compulsory, sale or transfer of
the partnership interest of any one of the partners. 17 John. R. 525.
20. In New York, it has been held that there is no such thing as an
indissoluble partnership, and that, therefore, any partner may withdraw at
any time; and by that act the partnership will be solved; the other party
having his action against the withdrawing partner upon his covenant to
continue the partnership; 19 Johns. R. 538. This doctrine is not in
accordance with the English law. Indeed it is even doubtful in New York.
Story, Eq. Jur. Sec. 668; Story, Partn. Sec. 275; 3 Kent Com. 61, 4th ed.; 1
Hoffm. Ch. R. 534. See Gow on Partn. 803, 305, and 4 Wash. C. C. R. 232.
21. It may also be dissolved by the extinction of the thing or object of
the partnership; or by the agreement of the parties. See Civ. Code of Louis.
art. 2847 Code Civ. B. 3, fit. 9, c 4 art. 1865 to 1872; 2 Bell's Com. 631
to 6414, 6th ed. See Dissolution.
22. The effect of the dissolution of the partnership is to disable any
one of the partners from contracting new obligations or engagements on
account of the firm. 1 Pet., R. 351; 3 McCord, 378; 4 Munf. 215; 2 John.,
300; 5 Mason, 56; Harper, R. 470; 4 John. 224; 1 McCord, 338; 6 Cowen, 701.
But notwithstanding the dissolution there remain, with each of the partners,
certain powers, rights, duties, authorities, and relations between them,
which are indispensable to the complete arrangement and final settlement of
the affairs of the firm. The partnership must, therefore, subsist for many
purposes, notwithstanding the dissolution. Among these are, 1st. The
completion of an the unperformed engagements of the partnership. 2d. The
conversion of all the property, means and assets of the partnership,
existing at the time of the dissolution, for the benefit of those who, were
partners, according to their respective shares. 3d. The application of the
partnership funds, to, the liquidation of the partnership debts. Story,
Partn. Sec. 324.
23.-Sec. 3. By the laws of Louisiana, partnerships are divided, as to
their object, into commercial partnerships and ordinary partnerships
Commercial partnerships are such as are formed, 1. For the purchase of any
personal property, and the sale thereof, either in the same state or changed
by manufacture. 2. For buying and selling any personal property whatsoever,
as factors or brokers. 3. For carrying personal property for hire, in ships
or other vessels. Civ. Code of Lo. art., 2796.
24. Ordinary partnerships are, such as are not commercial; they are
divided into universal or particular partnerships. Id. art. 2797.
25. Universal partnership is a contract by which the parties agree to
make a common stock of all the property they respectively possess; they may
extend it to all the property real and personal, or restrict it to personal
only; they may, as, in other partnerships, agree that the property itself
shall be common stock, or that the fruits only shall be such; but property
which may accrue to one of the parties, after entering into the partnership,
by donation, succession, or legacy, does not become common stock, and any
stipulation to that effect, previous to the obtaining the property
aforesaid, is void. Code Civ. of Lo.art. 2800.
26. Particular partnerships are such as are formed for any business not
of a commercial nature. Id. art. 2806. The business of this partnership must
be conducted in the name of all the persons concerned, unless a firm is
adopted by the articles of partnership reduced to writing, and recorded as
is prescribed with respect to partnerships in commendam. Id. art 2808.
27. There is also a species of partnership which may be incorporated
with either of the other kinds, called partnership in commendam, or limited
partnership. Id. art. 799. Partnership in commendam is formed by a contract,
by which one person or partnership agrees to furnish another person or
partnership a certain amount, either in property or money, to be employed by
the person or partnership whom it is furnished, in his or their own name or
firm, on condition of receiving a share in the profits, in the proportion
determined by the contract, and of being liable to losses and expenses to
the amount furnished, and no more. Id. art. 2810.
28. Every species of partnership may receive such partners. It is
therefore a modification of which the several kinds of partnerships are
susceptible, rather than a separate division of partnerships. Vide Bouv.
Inst. Index, h.t.: Firm.
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