an ordinary partnership and a corporation, for in the latter the rule is otherwise, and the management of the business is solely in the hands of the directors.1 But even in the case of a partnership, if the business of the firm is by special agreement vested in the hands of any one or more members of the firm, such members have a perfect right to manage the firm business without the consent of the other members of the firm,2 and their authority to so act can either be established by direct evidence of such agreement, or implied from circumstances and acquiescence of the other members of the firm.3 The partner managing the business, however, is under a strict obligation to account to his copartners for his dealings and transactions, and any member of the firm can enforce his right to his share of the profits, by an action for an accounting, and this even though an action for damages could have been maintained.5

§ 346. Same - Trust relation arising from. — The partnership relation is one of trust and each member is held

1 Lindley Part. (Vol. II), § 540; Burnes v. Pennell, 2 H. L. C. 520 and 521; Ang. & Ames on Cor., § 221. And such power cannot be taken from directors. James v. Eve, L. R. 6 H. L. 335.

2 Adionne v. Maxcy, 13 Mass. 178; s. c. 15 Id. 39. Majority have a right to control the firm business. Childers v. Neely (W. Va.), 34 S. E. Rep. 828.

3 Anthony v. Wheatons, 7 R. I. 49, where it was held competent to show the interest of the managing partner, going to show why such authorlty should be implied. Authority need not be in writing. Preston v. Mo. & Pa. Lead Co., 51 Mo. 43.

Lind. Part., § 945; Cruikshank v. M'Vicar, 8 Beav. 106.

5 Wright v. Hunter, 5 Ves. 792; Townsend v. Ash, 3 Atl. 336; Blain v. Agor, 1 Sim. 37, and 2 Id. 289. And equity in such case will adjust and adjudicate all conflicting rights. Bracken v. Kennedy, 3 Scam. 558; Gillett v. Hull, 13 Conn. 426; Niles v. Williams, 24 Conn. 279; Hunt v. Gookin, 6 Vt. 462; Collyer v. Collyer, 38 Pa. St. 257; Stamuens v. M. E. Naughten, 57 Ala. 278; Palmer v. Tyler, 15 Minn. 106; Harvey v. Bonney, 98 Mass. 18; Shepherd v. Boggs, 2 N. W. Rep. (U. S.) 370; s. c. 9 Neb. 257; Neville v. Moore Min. Co., 67 Pac. Rep. 1054 ( 90').

to the utmost good faith and fair and open dealing with his copartner.1 Without his special agreement no partner can charge his associates for his services; 2 no partner can place himself in a position to bias himself against the discharge of his duty to his partners; 3 no member can receive a secret profit or bonus in regard to the firm's property or business, and the purchase of any property the firm is equitably entitled to, would be held in trust for the firm.5

Right to an account.

§ 347. Same - No partner is entitled to appropriate more than his share of the partnership mineral, produced from the firm's mines,6 and if he

547.

1 Jennings v. Rickard, 15 M. M. R. 624; Bank v. Bissell, 11 Idem,

2 Godfrey v. White, 11 M. M. R. 562. But see, contra, Duff v. McGuire, 12 M. M. R. 353.

3 Burton v. Wookey, 11 M. M. R. 343.

4 Fawcett v. Whitehouse, 11 M. M. R. 250. 5 Settembre v. Putnam, 11 M. M. R. 425. "Plaintiff and defendant (who was a shopkeeper) entered into partnership in' the business of purchasing lapis calaminaris from the miners, the defendant being the active purchaser. He changed the purchases from cash transactions into barter, and paid the miners in goods from his store: Held, that his partner had a right to a division of the profits made by the partner in his barter of goods." Burton v. Wookey, 6 Madd. 367; M. M. D. 267. "If two or more persons as mining partners, claim and develop a mine situated upon land owned by a third person, and the partners authorize one of their number to purchase the land of the owner for the benefit of all, and he buys the same in his own name, he holds the legal title of his partners' proportion in the mine in trust for them. Settembre v. Putnam, 30 Cal. 490; B. & W. L. C. 514; M. M. D. 267. Where a lease is surrendered by partners three months before its expiration and a new lease taken, leaving plaintiff out, his interest continues in the firm under the new lease. Con. Div. Min. Co. v. Bliley, 23 Colo. 160; 46 Pac. Rep. 633.

6"No demand is necessary as a condition precedent to a suit between partners for an accounting and settlement." Hanna v. Mc Laughlin, 63 N. E. Rep. 475; Bentley v. Bates, 4 Y. & C. Eq. Ez 182; Roberts v. Eberhardt, Kay, 158; Warring v. Crow, 12 M. M. R 283.

should do so, the balance of the firm would be entitled to an accounting therefor,1 without seeking a dissolution of the firm.2 But partners who have abandoned the enterprise could not compel the abandoned partner to account, for all they would be entitled to would be an account of the money received on the disposition of the land and the rents or profits arising out of the operations conducted.3

§ 348. Same- Right to contribution. In case the mining operations result in a loss to the firm, any one partner who has made individual advancements for the firm, is entitled to contribution from his copartners.4 And if, in the course of the operations, one of the partners becomes indebted and is unable to pay his arrears to the firm, the partners making the advancement are held to have an equitable lien upon his interest for the amounts so due.5

§ 349. Same In case of dissolution

Any member

of a mining partnership, except those operated on the costbook principle, can dissolve the partnership at any moment he pleases, provided the duration of the partnership is in

1 Ante, idem; Clegg v. Edmondson, 8 De G., M & G. 871; MacSwinney, pp. 114, 117.

2 Bentley v. Bates, supra. But see, contra, Nisbet v. Nash, 11 M. M. R. 531.

3 Rhea v. Tathens, 11 M. M. R. 321; Rhea v. Vannay, 11 M. M. R. 315. A prospector's contract for a future mining partnership, while still executory, will not give right to an accounting. Prince v. Lamb, 128 Cal. 120; 60 Pac. Rep. 689. See chapter, Accounting.

4 Henderson v. Eason, 17 Q. B. 701; Roberts v. Eberhardt, Kay, 148. 5 Feredey v. Wightwick, 1 R. & My. 45; Kay v. Johnston, 21 Beav. 536. "On a bill for an account of the dealings and transactions of a mining partnership, it is not necessary to pray for a dissolution of the concern." Bentley v. Bates, 4 Y. & C. 182; M. M. D. 271.

6 Lees v Jones, 3 Jur. (N. s.) 954; Lind Part., Vol. I., § 221.

definite,1 and the partnership will then continue only for the purpose of winding up the business of the firm.2 But a notice to dissolve the partnership, to be effectual, must be explicit and communicated to all the partners, and a notice which is in effect a mere proposal to dissolve cannot have such effect; 4 nor can a notice that a partner's share has been forfeited operate as a dissolution of the partnership, for the only thing intended by such a notice. is to sever the interest of the partner whose share is forfeited. After the dissolution of a partnership the first thing necessary is to pay the firm debts; secondly, to settle all questions of dispute and accounts be

1 Carlton v. Cummings, 51 Ind. 478; Skinner v. Tucker, 34 Barb. 333; McElvey v. Lewis, 76 N. Y. 373; Lawrence v. Robinson, 4 Colo. 567: Pine v. Ornsbee, 2 Abb. Pr. (N. s.) 375; MacSwinney Mines, p. 115.

2 Peacock v. Peacock, 16 Ves. 50. But the partnership must have a continuance, so far as respects the winding up of the concern, until all outstanding engagements are settled. Brown v. Higginbotham, 5 Leigh, 583. The causes for a dissolution are briefly summed up by Mr. Lindley in the following classes: (1) The will of one partner: (2) The impossibility of going on, in consequence of (a) the hopeless state of the partnership business, (b) insanity, (c) misconduct. (3) Transfer of a partner's interest. (4) Death. (5) Occurrence of some event rendering continuance of firm illegal. (6) Fraud. Lindley on Part., Vol. I., § 220, p. 283; Heath v. Samson, 1 Nev. & Man. 104. "A judgment dissolving a mining partnership, and directing a sale of the partnership property, and a division of the proceeds, is a final judgment." Clark v. Dunham, 46 Cal. 205; M. M. D. 272. "Before a final decree can be rendered dissolving a partnership, it is necessary that the assets should be converted into money, and each partner's balance ascertained and allotted to him." Levi v. Karrick, 8 Iowa, 150; 13 Id. 344; M. M. D. 272. Neither the death, bankruptcy or retirement of a member dissolves a mining partnership. Thomas v. Hurst. (Mo.), 73 Fed. Rep. 372.

3 Van Soudan v. Moore, 1 Russ. 463; Wheeler v. Van Wort, 9 Sim. 193; Parsons v. Hayward, 31 Beav. 199.

4 Sanderson v. Milton et al, 18 Vt. 107; Hall v. Hall, 12 Beav. 414. 5 Hart v. Clarke, 6 De G., M. & G. 232.

tween the partners themselves, and thirdly, to divide the remaining assets of the firm between the partners in the proper proportion; or if these are insufficient to pay the debts of the firm, to enforce the proper contribution between the partners for the payment of the firm debts." This can either be done by the partners themselves or their representatives,3 but in the case of a dispute between the partners, recourse must always be had to a court of equity, for equity alone has jurisdiction to sell and apply the assets of a partnership to satisfactorily adjust the accounts of the different members of the firm and enforce contribution, in case it is necessary to pay the firm debts. For a further discussion of the law on the consequences of a dissolution, with regard to the different members of the firm and the rights of firm creditors, the reader is referred to a special work on the subject of partnership.

§ 350. Right of assignee to compel accounting. When one partner sells his interest in the assets of an unsettled partnership to a third person, and draws an order on his copartner, directing him to pay the assignee any balance due him after settlement of the partnership affairs,

1 One partner, after a dissolution, has a right to have dissolution notice published. Traughton v. Hunter, 18 Beav. 470. But they cannot avoid liability for debts contracted prior to the dissolution. Lindley Part., § 1040, and p. 417 et sub. Their liability will continue as to an old customer, for a subsequent debt, unless notice of the dissolution is brought home to him. Lindley Part., p. 415, and § 1040.

2 Lindley Part., Vol. II., Bk. IV., § 1039, and cases cited. 3 Lyons v. Haynes, 5 Man. & Gr. 505.

Lindley Part., Vol. II., Bk. III., § 945. And where the dissolution is not contested the court will, on motion, decree a dissolution before investigating the conflicting claims of the copartners. Thorp v. Holdsworth, 3 Ch. D. 637. A firm is dissolved by sale of all the property. Dellapiaza v. Foley, 112 Cal. 380; 44 Pac. Rep. 727. Sale by one or more partners does not work a dissolution. Childers v. Neely (W. Va.). 34 S. E. Rep. 828.