RICH V. DAVIS & CO.

(6 California, 164. Supreme Court, 1856.)

Where a mining com.

2 Partnership of mining concern with merchant. pany, not incorporate, forms a trading partnership with an individual under a firm name, each member of the mining company is a member of the firm.

Salesman not a dərmant partner. Where one of the mining company acted as salesman of the firm it can not be pretended that he was a dormant partner whose acts would not bind the firm.

Appeal from the District Court of the Tenth Judicial District, County of Nevada.

The Flushing Mining Co., composed of eleven members, formed a partnership with Hamlet Davis, for trading, under the firm name of Davis & Co. Israel J. Hirst, a member of the mining company, acted as salesman in the store of Davis & Co. Davis and the Flushing Mining Company each put in an equal amount of capital. Dysart and Voorhies, two members of the latter, attended to the business for the company. Hirst executed a promissory note in the name of Davis & Co. which passed by indorsement to the plaintiff, and on which this action is brought. Hirst had on a previous occasion signed the firm name to a certificate of deposit, which had afterward been paid by the head of the firm.

The case was tried in the court below without a jury. The above facts appear in the finding of the court, upon which it gave judgment for defendants. Plaintiffs appealed.

MCCONNELL, ROBINSON and BEATTY & SACKETT, for appel

lant.

BUCKNER and HILL, for respondents.

The opinion of the court was delivered by Mr. Justice HEYDENFELDT. Mr. Chief Justice MURRAY concurred.

1S. C. on former a pal. 4 C1. 22.

2 See Flint v. Eureka Marble Co. 11 M. R. 588; Partridge v. Kingman, 130 Ma s. 473.

The facts found by the district court establish that Hirst was a member of the "Flushing Mining Company," the members of which, together with Davis, constituted the firm of Davis & Co., in whose name the note was executed by Hirst. This makes Hirst, beyond controversy, a member of the firm of Davis & Co.

The only remaining question is, was he such a dormant partner as would prevent his acts from binding the partnership? He was a salesman in the store of Davis & Co., and the findings show that on one occasion he had signed the firm name to a certificate of deposit, which was afterward recog nized and paid by Davis, the head of the firm; that this was to the same person to whom this note was made.

Slighter circumstances than these would, I think, be sufficient to show the authority of Hirst to bind the firm. The fact that he was a partner and actively engaged in the business of the partnership as salesman ought to be enough. The other circumstances only add strength to that which was strong enough without them.

The judgment is reversed and the cause remanded.

PATTERSON V. SILLIMAN.

(28 Pennsylvania State, 304. Supreme Court, 1857.)

Construction of agreement to borrow capital upon firm credit. Wher articles of copartnership provided for certain advancements to be made by each partner, "after which it is understood that should it be necessary to obtain more money for the completion of the works such money is to be raised between us on our joint note, or otherwise," the true construction of the agreement is, that after each partner had advanced the sums stipulated in the agreement, any further money required was to be raised by the joint efforts and upon the joint credit of the partners. 'Forfeiture of share-Burden of proof on forfeitor although defendant. Where an agreement of copartnership provided that the party violating the stipulations of the agreement should forfeit his interest in the concern, and at the option of the other partner might be ejected therefrom, by such other partner refunding to him the money advanced to expend in the same, it was held: 1, That it lies upon the partner claiming a right to forfeit the interest of his copartner, to prove fully

1 Oreamuno v. Uncle Sam Co., 1 M. R. 32.

and clearly that a cause of forfeiture had arisen. 2, That the onus probandi will lie upon the party asserting and claiming the forfeiture, although he be respondent to a bill in equity in which the complainant avers performance on his part and ejection by the other without cause. 1 Lease as firm assets-Forfeiture of lease. Where a lease is made of certain coal mines to two persons as tenants in common, and the lessees afterward associate themselves as partners for the purpose of mining, shipping and selling coal from the demised premises for the whole period of the lease, the leasehold is thereby converted into partnership assets, and becomes the property of the firm. If a stipulation in such lease provides that any transfer or assignment of the lease by the lessees, or permitting it to be seized in execution, should work a forfeiture of the lease, and enable the lessors to re-enter without prejudicing their right to claim damages from the lessees, such forfeiture is not incurred by a sale of the leasehold estate under a decree of a court of chancery as the property of the firm.

Appeal from the Common Pleas of Schuylkill County.

This was a bill in equity, in which Frederick Patterson was the complainant, and Alexander Silliman respondent. On the 1st November, 1851, the Kentucky Bank, by its agent, John C. Bullett, Esquire, leased to Frederick Patterson and Alexander Silliman the veins of coal known as the "Tuscarora " mines situated in Schuylkill county, for the term of twenty years from the date of the lease. The lessees agreed to mine and take out at least forty thousand tons of coal per annum during the continuance of the lease, and to pay twenty-five cents per ton for all coal taken out by them. The lease contained the following clauses:

"The said party of the second part bind themselves not to assign or transfer this lease, or any part thereof, without the consent of the said party of the first part, in writing, first had and obtained, or permit or suffer the same to be seized or taken in execution; but such sale, transfer, assignment, or seizure in execution, shall, ipso facto, work a forfeiture of this lease, and all the rights of the party of the second part of, in and to the same."

"The said party of the second part agree that any failure on their part to fulfill any of the covenants of this lease, shall be deemed and considered a forfeiture of the same; and the said party of the first part may, if they see proper, re-enter and take possession of the said demised premises, without

1 Messer v. Messer, 59 N, H. 375: Bank of England Case, 3 De Gex, F. & J. 645; Rust v. Chisolm, 57 Ml. 376.

prejudicing any claim they may have of damages for any breach of the covenants of this lease."

On the 31st day of March, 1852, Patterson & Silliman entered into articles of copartnership for the purpose of mining, shipping and selling coal from the mines leased to them by the Bank of Kentucky, of which the material clauses are recited in the opinion.

The parties commenced operations unler the lease, and prosecuted the business of opening and preparing the mines, erecting fixtures and machinery, and mining coal, until in the beginning of the month of November, 1852. Their expenditures then amounted to over $10,000, of which Patterson had paid between $2,600 and $2,800, and Silliman $2,000 in cash, and machinery for the colliery, which he alleged was worth $2,800; and for the balance of the expenditure the firm was in debt. The parties about this time differing in regard to the manner of raising funds to prosecute the operations and pay the indebtedness, Silliman, the respondent, tendered to Patterson, on the 12th November, 1852, the sum of $2,700; being the sum, as Silliman alleged, which Patterson had put into the concern. Patterson refused to receive the amount tendered. On the same day Silliman caused the following notice to be served on Patterson:

FREDERICK PATTERSON, Esq.:

POTTSVILLE, 12th Nov. 1852.

Dear Sir.-Your failing to comply with the terms of our agreement of copartnership, dated the 31st day of March, A. D. 1852, to carry on the mining operations on the Kentucky Bank lands, and your avowed determination not to comply with the same and refusal to furnish your proportion of the means to conduct the same, has left me no alternative but to dissolve the partnership. You are therefore notified that the partnership is this day dissolved, and that the mining operations will hereafter be conducted by me on my individual account. Your ob't servant,

A. SILLIMAN.

And on the following day Silliman also caused a notice of dissolution of the partnership to be inserted in "The Miners' Journal," a newspaper published in the borough of Pottsville.

In accordance with these notices Silliman took possession of the mines, colliery, and the property belonging to them, and refused to recognize Patterson as a partner any further in the concern.

The complainant, on the 2d December, 1852, filed this bill, in which he recited the facts as they are substantially contained in the foregoing statement. It concludes by asking an account and that the respondent might be restrained from receiving the partnership money or making a sale of the partnership property, and for the appointment of a receiver, for a decree of dissolution, and for a sale of the partnership property.

The case came on for hearing in the court below, on the bill, answer, and proofs, and after argument by counsel, the two judges who heard the cause (the other being related to one of the parties) differing as to the relief to which the complainant was entitled, the bill stood dismissed.

The complainant thereupon appealed to this court.

CUMMING, LOESER & CAMPBELL, for the appellant.

BANNAN & HUGHES, for the appellee.

The opinion of the court was delivered by Knox, J.

The bill sets forth that on the 1st day of November, 1851, the Kentucky Bank granted a lease to the complainant, Frederick Patterson, and the respondent, Alexander Silliman, of four certain coal mines in Schuylkill county, for the period of twenty years, the lessees to raise and pay rent for at least forty thousand tons of coal yearly. That on the 31st day of March, 1852, they entered into a written agreement of copartnership for mining and selling coal from the land leased to them, and prosecuted the business of opening and preparing the mines, erecting fixtures and machinery, and mining coal, until the beginning of the month of November, 1852, in which time their expenditures had amounted to over $10,000, $2,800 of which had been paid by the complainant, $2,000 by the respondent, and for the residue the firm was indebted. That the complainant declined making any further individual advances,