¶1(dissenting) — I. I entertain a positive and clear conviction that the construction put upon the contract between the parties by the majority of the court in the foregoing opinion is plainly erroneous. The clause of the contract demanding construction is in this language : “The partnership shall continue for the term of ten years from this date, unless sooner terminated by mutual consent, or by notice, which shall be in writing, and delivered sixty days before taking effect; or the said partnership may be extended beyond the above-named ten years by mutual consent.”
¶2II. This provision fixes the period of duration of the partnership at ten years. But the period may be terminated, first, by mutual consent; second, by notice, in writing, delivered sixty days before the date fixed for the termination of the partnership. The interpretation of the language relating to the notice I shall now attempt. It is plain that the language does not mean that a written notice per se terminates the partnership. The notice is not the ground or cause of the dissolution of the contract, but is only the vehicle conveying knowledge of some act or the exercise of a volition which has the effect to terminate the contract. The notice, therefore, per se, does not dissolve the partnership. The parties stipulate in ■ the clause of the contract I have quoted that the partnership may be terminated “by notice.” But, as we have just seen, the notice will not dissolve the partnership without a.prior act or volition, knowledge of which the notice promulgates. It is the proclamation of an act or purpose which dissolves the partnership.
¶3III. We shall now proceed to inquire what act is relied upon by the defendant as a dissolution of the partnership. The answer of the defendant and the contents of the notice of dissolution are not based upon a right claimed by the defendant to dissolve the partnership upon the mere exercise of his volition, without cause, but are based upon the sickness of plaintiff, *709and its probable continuance. We need not inquire whether defendant is authorized to dissolve the partnership without cause. Surely, no secret power is expressed in the contract, and it will hardly be claimed that one partner may lawfully, without cause, terminate a partnership without the consent of the other partner.
¶4IY. I am now brought to inquire whether the sickness of plaintiff, as shown in the majority opinion, constituted a legal cause for the dissolution of the partnership by the act of defendant, as shown in the notice. I am clear in the opinion that it does not. Sickness,physical disability and insanity, which will probably be protracted so as to incapacitate a partner from discharging his duty under the partnership contract, and other like causes, are grounds for the dissolution of a partnership by action in chancery. But they are not grounds upon which a partner may exclude his copartner from the business of the firm, or may decláre, by notice or otherwise, the dissolution of the partnership. This rule, I think, is supported by the books. I find nothing in conflict with it. It is based upon the plainest rules of justice. Disease, mental and physical, are incident to human existence, and may occur in the life of every man. That the law would hold his contracts of copartnership canceled, and the partnership dissolved, at the option of his copartner, without judicial adjudication, cannot for a moment be admitted. The common law, in its regard for justice, its practical adaptation of rules to the condition of the subjects of the law, its common-sense estimate and recognition of the rights of persons, never sanctioned a rule of this character, which, as shown by the facts of this case, is capable of working oppression in its application.
¶5In the case before us, plaintiff paid defendant thirty-one hundred dollars as a consideration for the contract. After discharging his duties under the contract for about sixteen months, he is taken sick, and is sent, for care and treatment, to the home of his friends. After the expiration of six or seven months, when *710.convalescent, lie is notified by bis partner tliat tbe partnership is dissolved. The partner who so rigorously enforces the contract shows that he himself had been, for a number of weeks, if not months, while plaintiff was connected with the firm, relieved of his duties as partner by reason of the condition of his own health, which required him to be absent during the winter. The plaintiff is entitled to the indulgence which defendant received, not only as a matter of humanity, but as a matter of law. The rule of law above stated is supported by the following authorities: Pars. Part. [ 3 Ed.] p. 503 ( *463) ; 2 Bates, Part., sec. 581; 2 Lindl. Part. [2 Amer. Ed.] p. 577; Story, Part., secs. 291-297; 1 Colly. Part., p. 149, sec. 101, and notes; 2 Clark, Part., p. 659; Grow, Part., side pp. 268-273.