Imágenes de páginas

course with that nation was, by the Constitu- rendering it illegal, it must be held to be valid tion and laws, vested in the United States. and binding. Godfrey v. Scott, 70 Ind. 259.

While the learned chancellor in the case o: In our opinion, the court did not err in sus. Goodell v. Jackson, 20 Johns. supra, gives a taining the demurrer to the first paragraph of comprehensive review of the Acts of Congress the answer. relating to the various tribes of Indians, and The second paragraph of the answer does not the treaties made with them, and reaches the stale a defense to any part of the plaintiff's conclusion that tbey are to be regarded as sen. cause of action. The fact that the lands set off arale and distinct nations, subject, however, to to the appellant may not be liable to levy and the proti cuon of the general government, the sale for the payment of the appellee's judgment case depended wholly upon the statutes of the furnishes no sufficient reason why judgment State of New York; and the questions there should not be rendered. The appellee may be adjudicated can bave no bearing upon the ques. able to collect his debt without resort to the tion now here for determination. Indeed, there land. As there is no pretense ibat the appellee would seem to be no doubt that the different is threatening to levy upon the land described lodin tribes residing within the territory of in the answer, there is no ground for an inthe United States, wbile they keep up ibeir junction. Furthermore, the pleading is not a tribal relations, are to be regarded, in the ab- cross-bill seeking aftirmative relief, but is an sChce of some Act of Congress upon the sub-answer. The court did not err in sustaining ject, as separate and distinct nations. The the demurrer to this answer. government bas always treated with ibem as The only matter urged under the assignment such; and, when engaged in war against the of error calling in question the action of the whites, they have never been treated as rebels, court in overruling the motion for a new trial buloject to the law of treason, but, on the con is that the judgment exceeds the amount trary, bave always been regarded and treated claimed in ihe complaint. It is not claimed as separate and independent pations, entitled to that the judgment exceeds the amount due on the rights of ordinary belligerents, and subject tie pole, but it is contended tbal the court crred to no other penalties. Acting upon the theory in repdering judgment for a sum in excess of that ibe Indians, maintaining their tribal rela- that covered by the prayer of the complaint. tions, residing on reservations secured to thein This contention cannot be maintained. The by treaties with the United States government, appellee could bave amended the prayer of bis constitute separate and distinct dations, and fol. complaint at any time, and this court will relowing the law as announced in the case of gard the amendment as baving been made in Worcester v. Georgia, it was held by this court, the circuit court. Carpenter v. Sheldon, 22 Ind. in the case of Me-shing.go-me-sia v. State, 36 259; Webb v. Thompson, 23 Ind. 423. Ind. 310, tbat this State bad no power to tax There is no error in the record. the lands reserved to tbe tribe to which the ap. Judyment affirmed. pellant belongs. But none of these cases decide that an Indian belonging to a tribe or pation has not the power to make a copiract of the kind dow before us, and our attention has not been James A. LOWMAN, Appt., called to any law which probibits him from making such contract. Very many of the Acts of Congress, as well as the udjudicated cases,

Frederick SHEETS. proceed upon the theory that an Indian may bind himself oy an ordinary executory contract,

(....Ind.....) and may con 'ract debis. Most, if not all, of 1. The court may require the jury to rethe Acts of Congress granting annuities to the

turn a special verdict at the request of one Indians provide that such Inilians shall not be

of the parties to the action, although he has prebound by any coutract whereby such annuity viously requested tbe court to instruct the jury is disposed of or pledged before the same is in writing and bus entered upon a discussion of actually paid by the government.

the questions of law to be embraced in such inBy Rev. Stat. U. Š. 1878, p. 367, it is pro- struction. vided that no agreement shall lie made by any 2. The Statuta prohibiting the making person with any individual Indi:n, noi a citizen

of contracts by parol which are not to be perof the United States, for the payment or deliv- formed within one year bas no application to a ery of any money, or other thing of value, in contract which has been fully performed by one present or prospective, or for the granting or of the parties. procuring any privilege to him or any oiler person, in consideration of services for said In. NOTE.-Statute of Fraurls: contracts not to be perdians relative 19 their lands, or to any claim

formed within one year. groping out of, or in reference to, annuities, A parol contract not relating to land, and not to installmenis or other moneys, claims, demands be j erformed within the year, is not enforceable. or things, under laws or treaties with the It is not taken out of the Staiute hy a part perUnited States, or official acts of any officers formance, as that equitable doctrine applies only thereof, or in any way connected with or due to contracts in "clation to land. Osbor le v. Kim. from the United States, unless such contract or

ball (Kan.) 21 lar. Rep. 103; Wolke v. Flemiog, I agreement be executed and approved as therein West. Rep. 166, 103 Ind. 105. provided. It does not appear that the contract are not enforceable; yet a contract to sell stock at

Oral contracts not to be performed within a year in suit falls within the class of contracts pro- the end of tbree years at a certain price, and also hibited by this Act of Congress. Unless it apo that it may be called at any time before the expipears that such contract falls within the pro-ration of three years, is valid although not in writvisions of this Stalute, or some other slatute, ling, because its performance within one year is


See also 9 L. R. A. 129; 13 L. R. A. 616; 28 L. R. A. 526; 47 L. R. A. 385.

8. A contract within the Statute of of this contract could it be performed by either Frauds is not void but merely voidable.

party to it witbin one year from the taking 4. Where a number of contracts are ihereof. made ai the same time and as part of the same

See Wilson v. Rny, supra; Boydell v. Drumtransaction, some of which are within the Statute of Fraud, and the others not, and they are of mond, 11 East, 142; Verrin v. Butters, 20 Me.

119. such a nature tbat they can reasonably be con. sidered as separate, the former will be enforced

Under the circumstances of this case Temalthough the latter are avoided.

pleton bad the power to sell the partnership 6. A person's title under a valid con- property, and i be appellant, Lowman, acquired

tract for the purchase of an interest in brood a good iitle by the purcbuse mares, which is coupled with a voidable contract 8 Kent Com. 44; Story, Partn. $ 94; Lock v. as to their keeping, will not be affected by the Lewis, 124 Mass. 1; Wells v. Mitrhell, 1 Ired. avoidance of the latter contract.

L. 4*4; Nicholas v. Sober, 38 Mich. 678; Chip6. Where partnership property is to be ley v. Keaton, 65 N. C. 534; Stokes y. Stevens,

kept for tbe purpose of carrying on a particu- 40 Cal. 391. lar business and not for sale, neither partner has

Messrs. Edwin P. Hammond, Matibew power to make a sale of the entire property.

H. Walker, Daniel Fraser, Isaac H. 7. Declarations as to the ownership of Phares and William B. Austin, for approperty,made by a person in possession there

pellee: of, are admissible in evidence upon an issue as to

Whep a contract within the Statute of Frauds such ownership us part of the res geslce.

is partly executed, pciiber party while the other (March 22, 1890.)

is not in default, can, excepi by consent of APPEAL boy, plaintiff from a judgment of beide Tesciodu pod recover what Las been paid favor of defendant in an action of replevip 10

Swa nzey v. Moore, 22 III. 63, 74 Am. Dec. recover possession of certain brood mares. Af. 134; Day . Wilson, 83 Ind. 463; Groves v. Cook,

88 Ind. 169. firmed. The facts are fully stated in the opinion.

The sale and delivery of the property by Tem. Messrs. Wallaco, Baird & Chase, for pleton to Sheets vesied good live in the latter. appellant:

Wood, Stat. Fr. & 235, pp. 431-435; Abbott Contacts prohibited by subd. 5 of $ 1 of the v, Draper, 4 Denio, 51: Coughlin v. Knooles, 7 Star ute of Frauds are not, by part performance, Met, 57; Sims y. Ilutchins, 8 Smedes & M. 328; taken out of the Statute.

Crabtree v. Wells, 19 III. 55. Wolke v. Fleming, 1 West. Rep. 166, 103 Ind.

A partner in selling the entirety of tbe part105; Houghton v. Floughton, 14 Ind 507; Wal nership property must act withis the scope of lace v. Long, 3 West. Rep. 870, 105 Ind. 522;

ibe partnersbip. Grotes v. Cook, 89 Ind. 169; Wood, Slut. Fr. Story, Parin. & 94. 492; 1 Addison, Cont. & 212.

Coffey, J., delivered the opinion of the Tbe Siatule applies to cases “where the con

court: tract is not to be performed by either party to it within a year.".

This was an action by the appellant against Haugh v. Blythe, 20 Ind. 24; Houghton v. broorl mares described in the complaint.

the appellee to recover the possession of forty

The Hougliton, Wolke 5. Fleming and Groves v. complaint alleges that be is the owner and enCook, supra. This provision of the Statute of Frauds apilai the appellee unlawfully deiaivs the pos

litled to tbe possession of the property, and plies to contracts of partnership as well as to session Iberpof from bim. other contracts. Wilson v. Rinn, 13 Ind. 1.

The cause was admitted to a jury, who re

turned the following special verdict: If any portion of a contract be within the Statute of Frauds, no portion of it can be en

State of Indiana, forced "wbere the several stipulations are so Bentou County: 1 88. interdependent that the parties cannot reasona- Benton Circuit Court, September Term, 1887. bly be considered to have contracted but with James A. Lowman a view to the performance of the wbole.

No. 1032. Caylor v. Roe, 99 Ind. 1.

Frederick Sheets. Uoder vo fair and reasonable interpretation We, the jury, having been instructed to re


possible. See note to Seddon v. Rosenbaum (Va.) by its terms is not to be performed within one 8 L. R. A. 339.

year, is void, yet if the partics trout it as valid unIf a contract can be fully performed within one til aficr a part of the work is done, it cannot tben year, on one side, it is not within the Statute of be avoilled so as to avoid payment of the reasondFrands. Thomas v. Armstrong (V.1.) 5 L. R. A. 529; ble value of the work that has been performed. Wolke v. Fleming, 1 West. Rep. 166, 103 Ind. 105; Keller v. Bley, 15 Or. 429: Barker v. Lauterbach, 10 Waslıburn v. Dosch, 68 Wis. 4:36.

Cent. Rep. 103, 68 Mil. 64; Freeman v. Fuss, 5 New The statute does not apply to actions for pay. Eng. Rep. 302, 145 Muss, 361. ment for property delivered and accepted under a A parol contract to serve a company as treasurer promise to pay, upon contracts wholly executed on for the term of tive years for a percentage of the one side within a year. Durfee v. O'Brien (R. I.) 6 protits, although not enforceable by action, is not New Eng. Rep. 42.

void, and, in so far as voluntarily executed by en. When one party to a verbal contract has fully tering upon and continuing in the service, its tering performed bis part of it, the statute uttoros no de- may be referred to and considered in determining fense to the other party. Simmons v. Headlce, 13 the mensure of compensation for the service. La Wes. Rep. 23, 94 Mo. 482.

Du-King Mfg. Co. v. La Du, 30 Miun. 472. Although & verbal contract to do work, which 7 L, R. A.


turn a special verdict herein, find the facts to ant, without objection or resistance, took said be as follows:

mares from plaintiff's pasture woere plaintiff About tbe 8th day of April, 1887, one Leroy bad put them, as aforesaid, and put them in Templeton was the absoluie owner of tbe forty bis, said defendant's, own pasture, on Fowler mares in controversy in this case, and on that and Van Natta's farm in said county, the same day bargained to the defendant, Sheets, a one being about four miles from the pasture wbere half interest in said mares, at and for the price said animals were when taken by the plaintiff of $45 for each of said mares, said mares in as aforesaid, and about tbe same distance from said bargain being valued at $90 each.

the plaintiff's said pasture, from which tbey By the terms of said sale said defendant was were taken by the defendant as aforesaid. to have possession and care and control of said Wbile said animals were in ihe possession of mares, aud was to keep the same until March the defendant as aforesaid, said plaintiff, on 1, 1891.

The 22d day of June, 1887, before the comSaid Templeton was 10 furnish pasture for mencement of this action, demanded said propthe same uviil October 1, 1887, after which the erty of said defendant, but said defendant refeed for said animals was to be furnished at fused to deliver hiin tbe possession there. the equal expense of said Templeton and said of. defendant.

Said plaintiff on the same day commenced Said defendant, from the time of making this action, and upon a writ ot replevin herein said bargain, was to look after and bave the issued and upon the plaintiff's undertaking, control and possession of said mares in the pas approved by the sheriil, said sherill, on said ture furnished by said Templeton, up to Ocio-writ, delivered said property to the plaintif, ber 1, 1887, and was thereafter to continue 10 wbo, by virtue of said delivery of possession, feed and take care of said animals and to bave has since relained and is now in the possession the possession of the same. Said Sheets was of said property. to pay said Templeton interest at 7 per cent op Said property is now of the aggregate value the purchase price of said mares from October of $3,400. At the same time of making the 1, 1897, and was to bave the option 10 pay said sale of a balf interest in said mares to said purchase money when he saw proper on or be Sheets, said defendant and said Templeton enfore March 1, 1891. On March 1, 1891, the tered into a bargain whereby said Temple top interest of said parties in said mares, and the was to lease to said Sheets 800 acres of real esproceeds thereof, was to be equal, after ac- tate, owned by said Templeton, in suid county, counting to each party for bis portion of the for the term of three years, to commence on expense, and also after payment to Templeton the 1st day of March, 1888. by the defendant of the purchase price for Ibe Said lands were the north balf of each of one-balf interest thereof, witb interest, if the two adjoining sections owned by said Templesame had not been previously paid.

ton, one lying immediately easi of the oiber, By the terms of said bargain, said mares and the south-west quarter of said east section were to be kept exclusively for breeding pur. -the precise location of said lands so leased poses, and were not to be worked or sold, broke was well understood and agreed to by the par. or traded by either party prior to March 1, lies at tbe time of making said bargain. 1891, excepi by consent.

By the terms of said bargain said land was Said bargain was not in writing.

to be cultivated in corn, oats, pasture and Pursuant to said contract, said Templeton, mearlow, as said Sheets might determine, aid on the same day that it was made, to wit, about as rent for the same said Sheels was to deliver April 8, 1887, delivered possession of said to sail Templeton, on said premises, one third mares to said Sbeets, who remained in the pos of the corn raised thereon in the crib, one third session and care of the same, baving the same of the oats in the bio and three tisths of the in a pasture furnished by said Templeton, in bay in the stack, and to pay $2.51) per acie said county, until the 16th day of June, 1887, for all the pasture except thirty acres, for which when said Templeton and said plaintiff, with no charge was to be made. out the knowleige or consent of said Shrets, Said Templeton was, before March 1, 1898, took said mares from said pasture, and placed to move a bouse from a designated part of said them in a pasture of the plain iff, about balf a premises to another designated part thereof, mile distot from where they were taken. and to put the same in a repantable condition,

The possession of said property was taken at an expense of not exceeding $300. by said Lowman, under a sale made to bim by At the same time tbat Templeton sold a balf said Templeton, on the 16th day of June, 1987, interest in said mares as aļoresaid, and at ibe on which day said Templeton sold said prop- same time that be leased said defendant said erty to said Lowman for the sum of $3,400 to real estate as aforesaid, said Templeton and be paid by said Lowman in six months after defendant entered into a bargain whereby it said cate, which was evidenced by a promis was agreed by and between them that such sory note, executed by plaintiff to Templeton, portions of the bay and grain as should be payable in a bank in this State, which said raised upon said leased premises by said de. note is still beld by said Templeton, and is still fendant, as the parties should determine, should wholly unp:id.

be fed 10 stock, which stock was to be pur Said Sheets bad no notice, knowledge or in- chased from year to year by said parties, with formation of sail sale by Templeton to the money to be borrowed by them jointly, and to plaintiff until after the same was made, and be taken care of by said defendant op said the possession of said properly taken by the premises, the expense of fceding the same 10 plaintiff as aforesaid; nor did be ever after be borne by Templeton and the defendant waids consent to the same.

equally, and the net profits thereof to be diOn the 22d day of June, 1887, said defend- vided between them equally.

Said mares were also to be kept on said the right to require the jury to return a special leased premises after March 1, 1888.

verdict without any request from either party. None of said bargains were in writing. Weatherly v. Iliggins, 6 Ind. 73.

Said sale of a balf interest in said mares, by It is earnestly contended by the appellant, in said Templeton to suid defendant, would not an able brief, that the contract found by the bave been made if said Templeton had not at jury is witbin the Statute of Frauds, and that the sume time leased said defendant said real it is therefore void. estate as aforesaid; but said sale of said half It is found by the jury, as we understand interest in said mares to said defeodant, and their verdict, that the contract to purchase said lease of said real estate, were in no wise stock to be fed on tbe farm bas no connection dependent upon said other contract, and would with the other agreements between the parties, have been made though said other contract bad and hence that agreement does not call for not been made.

any consideration at our hands. If, upon the foregoing facts, the law is with The contracts under wbich the question for he defendant, then we find for the defendant decision arises are: (1) the contract by which – that the property in controversy should be tbe appellant sold to the appellee a one-half in. returned to bim, or, if return thereof cannot terest in the property in controversy for an be had, that be should have judgment for one agreed price, and delivered to bim the posseshalf the value of the mares described in the sion; (2) the contract by which the appellant complaint. Thos. S. Lamb, Foreman. leased to the appellee the land described in the

verdict for the terın of three years; and (3) the But if, upon the foregoing facts, the law is contract, by the terms of which the appellee with the plaintiff, then we find for the plantiff, was to keep the mares in controversy and that be keep and retain possession of the breed them for a period of more than one property in coutroversy, and that be recover year. from the defendant one cent for his damages Tbe sale and delivery of a one-half interest berein,

in the mares in controversy is not within the Thos. 8. Lamb, Foreman. Statute of Frauds, because it was fully executed

by Templeton. The appellant moved the court for judgment The Statute probibiting the making of conin bis favor on the sperial verdict, which was tracts not to be performed within one year has overruled. The court sustained a motion by po application to contracts wbich have been the appellee for judgmert iv his favor on this fuliy performed by one of the parties. Brown, verdict, and rendered judgment for a return of Stat. Fr. S 287; Donellan v. Read, 3 Barn. the property.

& Ad. 899; Smith v. Neule, 2 C. B. N. S. 67; The errors assigned are:

Holbrook v. Armstrong, 10 Me. 31; Bell v. 1. That the court er red in overruling appel-Heroitt, 24 Ind. 280; Wolke v. Fleming, 103 lant's motion for judgment in bis favor on the Ind. 105, 1 West. Rep. 166. special verdict of the jury.

Nor is the lease of the land within the Stat2. That the court erred in overruling the ute of Frauds, as the Siatute expressly exempts appellini's motion for a renire de novo. leases for a period not exceeding tbree years.

3. That the court erred in overruling the Rev. Stat, 1881, $ 4904. appellant's motion for a new trial.

This is not an action by either party to en4. That the court crred in overruling the force the contract. A contract within the appellant's motion to arrest the judgment. Statute of Frauds is not void, but merely void

5. That the court erred in sustaining tbe Schierman v. Beckett, 88 Ind. 52; Day pellee's motion for judgment in his favor op V. Wilson, 83 Ind. 163. ibe special verdict of the jury.

In the latter case cited it was beld that wbere The first objection with which we are met a party had paid money on a parol contract for is that the court erred in directing the jury to the purchase of land, the money could not be return a special verdict.

recovered back unless the vendor refused to It appears by the record that after the close convey. of the evidence in the cause each of the parties It being settled that the contract for the sale requested the court to instruct the jury in of the property in controversy was not within writing, and to indicate before the argument, the Statute of Frauds, and that it vested the wbat instructions would be given. After the title to ibe undivided one balf of the property close of the argument, in the effort to settle on in the appellee, the question arises as to what the instruction, but before the court had an is the effect of the repudiation of the agreement nounced its conclusion, the appellee requested to keep the property for a period of more than that the jury be required to return a special one year for breeding purposes, by the appelverdict, wbich request was granted.

lapt, when the appellee is ready and willing to It is claimed by the appellant that, by re- carry out the contract on his part. questing the couri to instruct the jury in writ- We think, for the purposes of this case ad ing, and by entering upon the discussion of least, tbat it must be held that tbe agreement the questions of law to be embraced in such 10 keep the mares for breeding purposes until instructions, that the appellee waived his right 1891, each party furnishing a part of the feed, to a special verdict, and that the court for that with postponement of a settlement to that date, reason erred in granting his request.

is within the Statute of Frauds, unless it be It is unnecessary to decide wbether it would held that such contract creates a partnership. have been error in the court to refuse the re Stephenson V. Arnold, 89 Ind. 426; Wolke v. quest of the appellee for a special verdict. Fleming, supra. coming at, ibe time it did, but it was certainly If tbe contract between the parties created a not error to grant it. Indeed, the court bad | partnership, then, according to some of the 7 L. R. A.

authorities, it is not within the Statute. Wood, such case neither party bad the power to sell Stat. Fr. $ 281, p. 50.

the entire property. Bates, Paitn. 401; Heritt But conceding that the Statute applies to this v. Sturderant, 4 B. Mon. 453; Cayton v. Hardy, contract, did the repudiation of it by Temple- 27 Mo. 536; Mussey v. Holt, 24 N. H. 248; Hud top devest the title of the appellee to the prop son v. McKenzie, 1 E. D. Smith, 358. erty in controversy? We are of the opinion Mr. Bates, in bis valuable work on Partner. that the contract to keep the mares in volved in ships, in treating the subject in the section this suit until 1891 is so far separated from, above cited, says: “But I have no doubt but and independent of, the other contracts found that ibe power of sale must be contined to those by tbe jury, that the repudiation of it by the ap- things held for sale, and that i be scope of the pellant cannot deprive the appellee of the bene- business does not include the sale of the property fits he has acquired under the other contracts, beld for the purposes of business and to make a which are not within the Statute of Frauds, profit out of it, and that this only is the true without his consent. Where there are a num-rule." ber of contracis made at the same time, and as It follows from wbat we have said that the parts of the same transaction, some of which court did not err in overruling the motion of are within the Statute of Frauds and the others the appellant for judgnient in bis favor on the not, and they are of such a nature that they can special verdict of the jury, por did the court reasonably be considered as separate, those err in sustaining the motion of the appellee for which are not within the Statute will be en- judgment in his favor on said verdict. forced though the others may fall witbiu the It is contended that the special verdict before Statute. Brown, Stal. Fr. $ 143 et seq. us does uot find on all the issues in the case,

In such cases it is not so important to ascer and for that reason the court er red in overrul. iain whether the one contract would not have ing the motion for a venire de noto; but we been entered into without the otber, as lo ascer- think the verdict covers all the issues presented tain wliether they are in their nature separate by the pleadings in the cause, and that it is not anıl distinct. In this case, if the contract bad subject to the objection urged against it. been for the leasing of the land described in The court, over tbe objection of ibe appel. the verdict for the period of three years, coupled lant, permitted the appeilee to prove certain with the agreement on the part of Templeton declarations, male by bimself, in relation to to build a house on the premises during tbe the ownership of the property in controversy. second year, it could not be reasonably con. But these declarations were made wbile in postended that Templeton could defeat the appel. session of the properly, and under the rule as lee's tenancy by a refusal lo erect the house, settled in the cases of Bunnell P, Studebaker, though it should plainly appear that the onc 88 Ind. 338; Kuhne v. Gates, 92 Ind. 66; Mé contract would not have lieen made without Connell v. Tanah, 96 Ind. 102, and Creighton the other. So we :hink Templeton could not v. Iloppis, 99 Ind. 369, it was admissible as part devest the title of the appellee in the mares in of the res geste. Durham v. Shannon, 116 İnd. controversy be a refusal to carry out the agree. 403. ment in relation to keeping them until 1891. Finally it is contended by the appellant that It is probably true that the appellee could the verdict of the jury is not supported by the pot naintain an action against him for such evidence. We have real the evidence carerefus:il, but we do not think this fact affects fully, and while it is conflicting, there is evithe title whicb the appellce acquired by a dence in the record fairly sending to support contract which is not affected by the Siatute the verdict. Its weight was for the jury. We of Frauds.

cannot disturb the verdict on the weighi of the Having reached the conclusion that the ap. evidence. We find no error in the record for pellee is the owner of an undivided interest in which the judgment should be reversed. the property in controversy. it follows ibat ap. Judgment affirmed. pellant cuinnol maintain this ac iou unless lie acquired i be whole title to the same by his pur.

Petition for rehearing overruled June 20, chase from Templeton. Mills v. Malott, 43 1890. Ind. 248; Luren v. Weaver, 49 Ind. 373; Branch v. Wiseman, 51 Ind. 1; Schenck v. Long, 67 (od. 579.

Emily E. VALENTINE et al., Appts., It is contended by the appellant that Templeton and appellee were partners, and that, as

Jacob II. WYSOR. such, eitlier partner had ibe right to sell be property owne:I hy thie firm and confcr : good

(......Ind.......) title, and that by liis purchase from Templeton he acquired the title to the wbole of the prop. 1. Although heirs of a deceased parterty in contioversy, aud bas a right to its pos

ner cannot maintain an action to compel session.

the surviving partner to account in the absence We do not deem it recessary to decide whether the contract between the priies was

NOTE.- Dissolution of partnership by death. one of partnership or not, as the appellant bad As a general rule the death of a partner dissolves

First Nat. Bank v. Farmre Depreit Nat. po power to sell the entire properly, whether the firm. it was held as partnership property or other

Bank (Pa.' 5 Cent. Rep. 50.1: Seudiler v. Ames, A wise. The purtnership, if one existed, was not

West. Rer. 848, 89 Mo. 496; Weise v. Mnore, 5 West.

Rep. 58, 22 Mo. App. 550. one in which the parties contemplates a sale of

The death of a parin's disenlves the partnersbip, the properly here involved, but it was one in unless in the life of the deceased provision was which ibis properly was to be kept for the pur mude for its continuance. Suipe's App. 5 Cente pose of carrying on a particular business. lol Rep. 149, 114 Pa. 205.


See also 34 L. R. A. 265.

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