To this the' defendants sent the' following answ:er,' which closed the correapondencef' ., " . .,.,. /; , ' " u, , · "It.EA'UCtAffiE, WJs.,.A:ug:lSth,lSSS. O. Baker! Esq., Hudson, WI".-1>E:AIiSJR: YOursQf the 7th,
ing'O;'D. Hammond's statement and acceptance of our prOposttion, was duly received. The account cont&!n,1l some items that .do not properly belong in it, I think, but adjus't' thlit"when I see you or Mr. Hlimiriond. .. ,o,wn an.interest in the that I supposed we coUld' handle a8we. did: bur!l,l>ut WE;! are. ba ving sOme dIfficulty in lIrl'llngi ng with them at ·. ' I &dpe we shaH 'soon 'get thein ,l:l.lid out. of the ','Way.' "We would 'want the R;Co.t?bind themselves to,maintain station 'at that point as .it Is now, with, agt.,l:Ipr., etc;, for a tetmof years at least, 'which Huppose they will'do. . .' .. " . "Yours, t l ' u l y , ! > ; ,P;SlMONS."
The sole question raised and argued on the hearingwas whether the 'above correspondence coilstituted a written contraot for the sale of the complai!lant's interest in tM real estate described. It :will be noticed that inth.e fj,rst letter by proposing to either sell or. buy, no·d!3scription of ,the land at all. It is simply referred to as 'the "Flambeau Town-site." There is nothing in the complaint to show that descrilledin oqhe complainant company is the same as the tOwp-sHe 'llpokeriof in tne flrstletter, though that inference made in order tQsustain a contract from this proposal and supmust posed acceptance. But as the question of the sufficiency of this de8criptibn was not argued by counsel, the court will proceed to consider the case upon the one question made, which is whether there was a distinct proposition for a sale or purchase made by the one party and an unqualified accElpta,nce'th.ereof:by the other. If not, then it is clear that tpere. was not such a meeting ()f the minds of the parties as is necessary to collstitute a c0J;ltrll-ct; .If there was nota full and complete parties upon a distinct proposition for a meeting of the minds . sale, the court cannot enforce a specific performance, although the diference between them may be very slight. The parties must make their own contract in all particulars, and if, they have not done so the court cannot aid them by saying what the contract ought to be. There must be an unqualified and unqlodified. acceptance of a distinct and unconditional offer to (lonstitrtte acoritract byletter correspondence. See Baker v.JIoU, 56 Wis. 100, 14 N. W. Rep. 8j Sawyer v.Br088art, 67 Iowa, 678, 25 N. W.qRep. 876; Myers v. Smith, 48 Barb. 614; 1 Chit. Cont. 15, and notesj Bish. Cont. § 322j Iron Co. v, Meade, 21 Wis. 480j 1 Pars. Cont. (6th 'Ed.) 475; Siebold' v; Da'lJis, 67 Iowa, 560,25 N. W. Rep. 778; v. Matthews, 34 Htin,74. Now, waiving thequestiop of the want of any description of the land in .the first proposal by thij defendants, a, meeting c()f the. minds on one and the llama thifig in all other particulars? ;was certainly an .agreement onthe matter of the price of the' one-half interest in ,the land,. But it Seems qt?-ite as cleat that there waS not in.resp6lctto the and timesoi payment, if the parties intended, to wake a s6.ttlement of the cash acon the land a condition oithe The
SAULTS'l'E.M. LIND&: IMP:
view was pressed with much vigor' complainant's' counsel that, as the parties agreed upon the value of land, it was not material to the sale that they should agree upon a statement oithe cash account for expenditures; that that was an outside mat jer, and could be adjusted independently. But if the parties have by their acts made that material, the court cannot adjudge that it is not' material; and this is just what they seem to have done·. H,the defendants, in their original proposal to buy or sell, had simply said, "Wewill give or take $3,500, and let the money acct. stand to be arranged by subsequent agreement or by arbitration," and this proposition had been accepted by complainant, that would constitute a contract for sale, though the parties might Ii.'ever have been able to settle' the account· for disbursements in either of the ways; mentioned. The (laurt, in such case,wo\lldfind some other way to settle the account. But it seems evident from all the three letters that the parties wished and intended to artivEl at an adjustment of the cash account and the Corbett and Clark contract,as part and parcel of the terms of the sale and the payment of the consideration, and if that is what they intend$d, and there was no meeting of minds upon that question, then there was no contract, though the conditions in all other respects were agreed upon. The original proposal by defendants, after naming the price, immediately adds: "The purchase.r; to have the ben· efit of the Corbett and Clark contract, ($4,000.)' In case we purchase of the Co. we will refund to them purchase price of lands they ha,ve bought,"-and then goes onto state the account as they understand it, making a total of disbursements by'dOmplainant of about $1,865.13. Can it be, said that this statemehtof the account, is not a material of the defendants' proposal? In the complainant's answer to the defendants' proposal, after making a statement of the cash account substantially stated in the proposal, they say: There are two items which appear in our books, which they have omitted, by mistake no doubt. One is an item of taxes paid by us all 'o'. . . . . '171 32 Also for blue print and,pl.t of town-site, '14 ·00
32 _.One-half of which will properly belong to them to pay, viz., $9266 Less taxes paid by them, amounting to · 15 03 Of which our proportion would be, · 7 52 Amount to be added to Mr. Barnett's statement of moneys advanced by us, 85 14 Then, after making a further statement of the account, they close by saying: "If this statement of their propositions is as understood by them, I will cause deeds to be made in accordance therewith." This shows clearly two things-First, that the complainant amended materially in complainant's favor, the defendants' statement of the cash account; second, that they did not understan.d by their reply that they were closing a bargain by an unconditional acceptance, but, on the contrary, expected communication from the defendants, and a reply to its (the a
of the state of the accounts and of.the balance to be turned on. the purchase price. It seems clear, then, that the complainant's Jetter left the matter. open for further adjustment. And now we COme to the defendants' reply. which closes the correspondenlJe, and whichs.eems still to leave the matter open, not only as to the cash account, but by introducing new matter, which, of course, if the, Qll>rgain had notalready been closed, was entirely competent for them to do. The defendants start out by calling the complainant's letter "s. statement and acceptance of our proposition." But from what they !!ay afterwards it is quite evident that they did not consider it an litncolllUiional acceptance, as we have seen that it was Qot in fact; for they go on to say that "the account contains some items that do not properlYibelong to it, I think, but I thipk we can that when we llee youGr Mr. Hammond,"-clearly showing that they did not consider the trade complete, and referring the matter for future consultation and agreement. Then thedefendants ,introduce two new and distinct elements,on account of which they were apparently not ready to close If this is not the proper oonstruction to,put upon them,it is the difficult to say why they should have been introduced at all. They say: .. Mr. SeYJDore and B. Viles own an interest in the lands that I supposed we could hllnqle as we did ours. but we are having some difficulty in arrangwe shall soon get them sat.lstied and out of ing with thllm at present., the way." .. . Then again; "We would want the B·. Co. to bind themselves to maIntain a station at that point, as it is now. with agt·· opr·· &o·· for a term of years at least. which \lYe they will do; I t · · It would s.eem from the defendants' introducing these new terms that they intended to make them conditions, or at least as showing that they wanted time for them to their satisfaction before closing the trade." '. . . ' . I am of opinion, considering the correspondence as a whole, it does not constitute a written contract for the sale of thecomplainailt's interest in the land. 'I'he demurrer is sustained, and complainant's bill dislt1issed, with costs.
ROSENSTEIN II. BURNS.
(Circuit Court, D. Massachusetts. October 24, 1882.)'
Where a person has been induced to enter into a partnership through the deceit of his partner, or where, after entering into the agreement of partnership, he finds that the business cannot be conducted at a profit, he may sue once, in equity, to ' dissolve the partnership and wind up its affairs.
A bill in equity, for dissolution and winding up of the affairs of a partnership, which alleges that the defendant partner Willfully neglects to comply 'with the part.r nership agreement, that the· business is being conducted at a loss, and that complainants were induced to enter into the agreement through defendant's misrepresentations, is not multifarious.
In Equity. On demurrer. W. F. &: W. S. Slccum, for complainants. Be:nj. F. Butler and Eugene J. Hadley, for defendants.
NELSON, J. This bill is brought to procure a dissolution and winding up of the affairs of a pattilership entered into between the parties under a written agreement for the canning of fish and the [Jl8.nllfllCttire of pOmace and fish guano, and to continue for the term of five years from July 1, 1881. The copartnership agreement provides that the ,plaintiffs shall furnish the capital with which to carryon the business. and shall furnish, also, all materials at cost; that the defendants 'shall have charge of and superintend the manufacturing department at the factory in Gloucester, keep correct books. and submit weekly statements of the business to the plaintiffs, make good and marketable ,goods, at the lowest deem advisllble; possible cost, in such quantities as the plaintiffs and that all goods made,except in certain specified cases, should be shipped to the plaintiffs; and be sold by them in New York. The grounds upon which the dissolution is asked for are the willful and persistent neglect of the defendants to comply with the terms of the written agreement, that the business is being conducted at .a great loss, and that the plaintiffs were induced to enter into the, partnership, and contribute their capital to the concern, through certain false and fraudulent representations of the defendants as to the nature and extent of the business. The defendants demur to the bill for multifariousness and for want of equity. Both gr6unds of demurrer must be overruled. The bill states a plain case for equitable relief. A partner is under no obligation to continue a member of a partnership when his copartner persistently and willfully violates. the essential conditions upon which the contract of the partnership rests. He is not under the necessity of remaining in the firm! and resorting to his action at law upon the partnership contract for redress. He is at liberty to withdraw himself and his capital from the concern whenever it becomes reasonably certain that the business can DO longer
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