Hoard v. Clum

1. An excess of parties is not ground of demurrer as “a defect of parties,” in the meaning of Gen. St. 1878, c. 66, § 92, subd. 4; Pomeroy on Remedies, § 206; Richtmyer v. Richtmyer, 50 Barb. 55; Allen v. City of Buffalo, 38 N. Y. 280; Lewis v. Williams, 3 Minn. 95, (151.)

2. Three members of a partnership firm and the heirs of a deceased fourth bring this action against the remaining member, for the purpose (1) of having the partnership adjudged dissolved; (2) of having the partnership wound up, and, to that end, an accounting had, a receiver appointed, its assets converted, its debts paid, and the rights of the partners among themselves ascertained and adjusted.

In the absence of previous agreement to the contrary, the death of a partner works a total dissolution of a partnership; that is to say, a dissolution both as respects the deceased and the surviving partners. Pollock on Partnership, § 183; Collyer on Partnership, §§ 103, 106; Story on Partnership, §§ 317, 319a, Marlett v. Jackman, 3 Allen, 287; Roberts v. Kelsey, 38 Mich. 602; 1 Lindley on Partnership, 231. A simple provision in the articles for the continuance of the partnership for a fixed period, as, in the present instance, for 30 years, is not such an agreement. Collyer on Partnership, §§ 100, 105; Crawford v. Hamilton, 3 Madd. 251; Crosbie v. Guion, 23 Beav. 518; Story on Partnership, § 319a. Mining partnerships appear to be governed by somewhat different rules. Jones v. Clark, 42 Cal. 180.

In case of such dissolution, the right of surviving partners and of the representative of a deceased partner to have the partnership wound up, and any surplus property distributed, is matter of course. 1 Collyer on Partnership, § 107.

In the ease at bar the partnership was dissolved by the death of the partner Hoard. The articles contain no stipulation for the continuance of the business of the concern, except upon specified contin*189geneies, none of which have occurred, and none o£ which, therefore, cut any material figure in the ease. It follows that the three partners plaintiff can maintain this action against the partner who refuses to recognize the dissolution, and to co-operate in closing up and adjusting the business of the concern. As respects their right to maintain it, it is not important that the heirs of the fourth partner, who are joined with them as plaintiffs, have alleged no facts to show that they are proper parties to the action, nor that the executor or administrator of the deceased is not joined; for no objection, as respects parties, has been taken, except that there is a defect of parties on account of the joinder of the heirs, and this we have disposed of.

Order affirmed.