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
Jpublication, delayed by faUure to receive copy.
be carried on at a profit, whether through the misconduct of his copart-: ner or from a failurnoMbElfbl1l;iuesaitself'"iSo,'if;he has been induced to enter into the partnership contract through the decei.t of his copartner, he may'Withdraw:Wli\fuever the frauclpracticeduporr him becomes known. In neither case is he until,th;e lilAitationo£' time; but isaflibertyat once to ask (lP of ,. Toe -lMl'ls not multifarIOus;. It has a sImple purpose, the dIssolutIOn and winding up ()fthe concern. for relief are /38.In,e series of relate to the same subject-matter, and,cao 'be, conveniently settled in one suit. They are'all'l>fop'el'lyjoined'in 8he bill.
UNITED STATES tI. NORTHERN PAC.
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R. Co. et ale
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,i '(; ,4otlJilotag.,July':9,'l8M,'l§l'lIDied publio'landS to ihe'Nl'l'l.R:;Co., and authorized !II !ro\Il by the, most eligible I." to 'b'edetel"mlned' Oysltidcolnpal1Y; wi.tl:l1n t11e UUlted' States and on ,a line forty·fifth ,rot, IBiIitnd,81>1:4" !some, 'PolO,,',..'on,puge,t,sound. W, ith a, , , val,ley ,of. ,tQ a pQjllt,8t, Por.tland, Or. ", 'Hetd,'iiia\i It'waS oplionill'wltbtne cO,mpany whether 11; would1)ul1d the branch to , ··, ,The rclaij,lIe ,giving. it auth:ority to ao'so :did riilit 1111111;, itu'ight to choose sound. ! ) A'ot: Cd1Ilc. May 81, 'l:870( IUtthorizll1g .ald company to lobate'andOODstruct, under ,alld 8114 grlloDts JIIo a,ctof inCQrporaUOl1, COlig.,'J'uty 2,1864,) Us ,main line. tol'uget sound via the Columbia river, etIo,', is an Bwrovli.hnd eopfirmliition 'of the location of Its lil1etheretofore madll by : thll CC>lumbia to ;puget sop u.. '
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,41p\lationof land to said 'oompanyunder Act Cong.. July 9, 1864, Was a grant t.ook, effect as of thatgatll upon the location by the company Of Its road, and approval thereof by congress: '
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, . Soctipn 6,Qf'l\aid actprpvldell the !!hall caU!!. the lands to be sur"eyed fot40' mires on eachsid'e 'of the entire,liue,ot the rlJad af,ter. the general route 'shall bei :fi:lllec1l" "and the otld'86etions of land hereby granted'shai1 not be liable to pr au.rve.y:sd, by s.aid company. '. lIeUl,' tl1at the act Withdrew the lands from !labIlity, to pre-emptIOn after the route should be fixed; and, ou the filing by the company of a map of the route with the, interior,thegl'lUlt,.beca\Ile :C6rtai!:lj and attachlld to the odd sections of the land within the 4O-miIe limIt. &.SllfB-'NMLlI:cT OP'SECRETARYOl!' THE Imino·. ' Wiheu the rp,ute was adopted 'bY' t1;le,coiupany.and amap desmnating It was filed with. tne of the iI/.t6ri\ir, ,the route witnin the' meaning of ,tM'l.<lll\'and'Do sUbsequentneglecll'of the 'secretary COUlQ the 'rights ot the
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tim bElr ,cilt in: 1886; upon, the. N. W. tot Secti01l17, township 18, range 4 W. of the WiIlamette meridian, alleged to be public lands. The,defense,.is,that the/38.idrland was not
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