The Modern Law of Partnership: Including a Full Consideration of Joint Adventures, Limited Partnerships, and Joint Stock Companies, Together with a Treatment of the Uniform Partnership Act, Volume 2

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Bobbs-Merrill Company, 1916 - 1706 páginas
 

Conteúdo

Payments to and by surviving partner
821
Status of partnership real estateOutandout conversion into per sonalty
822
Status of partnership real estateConversion into personalty for partnership purposes only
827
PAGE
828
Status of partnership real estateTime where conversion takes place
833
Rights of surviving partner in firm real estate
837
Rights of heirs devisees widow and personal representatives of de ceased partner in partnership real estate
841
Rights of heirs and surviving partner in surplus real estate
844
Rights in firm real estate under Uniform Partnership Act
845
Liability of surviving partner and deceased partners estate on firm obligations
846
Surviving partners rights and liabilities as to deceased partners es tate
849
Surviving partner and good will of business
851
Surviving partner as deceased partners executor or administrator
853
Partnership administrator under statute
854
Winding up the business
855
Interest and profits
857
Compensation
858
Continuation of business by surviving partner
862
Rights and liabilities of deceased partners estate his heirs and per sonal representatives on continuation of business
866
Executors of deceased partners
869
Accounting by surviving partner
870
Rights of creditors
871
Accrual of actions
872
CHAPTER XXI
875
Accounting or action without dissolution
877
Accounting for secret profits
880
Particular cases on secret profits
881
Profits from independent transactions
883
Accounting where partnership is illegal
884
Some leading cases on accounting where partnership is illegal
886
Who may require an accounting
890
Who must account
891
What property must be accounted for
892
Good will of firm
894
Other matters to be included in accounting
895
Distribution generally
897
Rules for distributionUniform Partnership Act
898
Determining partners shareIn general
899
Discharge of partnership liabilities
900
ContributionRepayment of advances
901
Compensation for services and expenses of winding up business
904
Interest
906
Lien for advances or balances
909
Apportionment of losses
910
Repayment of capital
912
Partition of assets
914
Division of profits
916
Proportionate share of each partner in profits
919
Private settlement
921
Assumption of firm debts indemnity and suretyship
926
CHAPTER XXII
929
Test of solvency of a partnership
932
Administration of unadjudicated partners individual estate
935
Partnership and individual interests
939
Particular instances of partnership or individual ownership or in debtedness
941
Authority to adjudge partnerships bankrupt
944
Result of proceedings where only part of partners join
946
Preferences
948
Order of proof of debts
950
Exception to general ruleWhere no partnership estate and partners are all insolvent
951
Cases not recognizing exception to general rule where no partnership estate and partners are all insolvent
953
Proof against both estates
957
Proof between estates
958
Costs of partnership petition
959
SECTION PAGE 701 Acts of bankruptcy
960
Particular cases involving acts of bankruptcy by partnerships
961
Place of commencing proceedings
962
Exemptions in partnership proceedings
963
Appointment and powers of trustee in partnership cases
965
Discharge in partnership cases
966
Misconduct of one partner as affecting innocent partners right to discharge
970
Bankruptcy as dissolution of partnership
972
CHAPTER XXIII
974
Form of remedy and jurisdiction
977
Defenses
980
Time to sue and limitation of actions
981
Parties
985
Injunction
988
Appointment of receiver
989
Powers and duties of receiver
994
Procedure at trial
997
Burden of proof
998
Manner of drawing account
999
Partnership books and accounts
1001
Conversion of assets into cash
1003
Charges and credits
1007
Decision
1011
Decree
1013
Costs
1016
AppealConclusiveness of judgment
1018
CHAPTER XXIV
1021
SECTION PAGE 740 In general
1022
Actions between firms having common partner
1026
Partnership transactions not involving an accounting
1034
Action on express stipulation
1035
Action on preliminary agreement
1036
Partnership for single transaction
1038
Action on personal promises of pay for services
1041
Action upon account stated or balance due
1043
Action on promissory note
1044
Action for damages for breach or abandonment of partnership agreement
1045
Action upon one item unadjusted
1047
Assumpsit
1049
Action for damages for fraud of partner
1051
Partition and suits involving real estate
1053
Tort actions between partners
1054
Actions between partners after dissolution
1055
Attachment and garnishment
1057
Arrest of partner in civil action
1058
Defenses
1059
Setoff and counterclaim
1060
DemandLaches
1061
VenueTime to sue
1062
Damages for breach of contract of partnership
1064
Profits as the measure of damage
1066
Other measures of damage
1069
Damages for breach of contract to pay firm debtsor not to engage in business
1070
Judgment and execution
1071
Equitable actionsIn general
1072
AccountingDissolution
1074
Rescission of partnership contract under Uniform Partnership Act
1077
Reformation of partnership contract
1078
Specific performance after dissolution
1082
Injunctions
1084
Injunction to restrain change in the application of profits
1085
Injunction against commencing legal actions
1086
Injunction against dissolution
1087
Other acts enjoined
1088
Injunction in action for dissolution or after dissolution
1089
Receiverships
1090
Receiverships on account of misconduct of a partner
1092
CHAPTER XXV
1095
PlaintiffsGeneral rule
1098
PlaintiffsNominal partners
1101
PlaintiffsDormant partners
1102
PlaintiffsWrongdoing partner
1103
Collusion of third parties and partners
1104
One partner suing for all
1105
Action on contract made in name of one partner
1106
Plaintiffs where contract assigned
1107
Surviving partner as plaintiff
1108
Plaintiffs in tort actions
1109
Defendants in action against partnershipIn general
1110
DefendantsWifeDower interest
1114
DefendantsOutgoing and incoming partners
1116
DefendantsDormant and nominal partners
1118
Nonjoinder of defendants in contract obligations
1119
Nonjoinder of defendants in tort
1120
SECTION PAGE 813 Suit against one partner
1122
Parties in equitable actions
1123
Venue
1124
Process and service
1125
Appearance
1130
Dismissal and discontinuance
1131
Attachment and garnishment
1132
Charging partners interest under Uniform Partnership Act
1138
Arrest
1139
Defenses
1141
Trial
1143
Judgment
1146
Execution
1152
Injunction against enforcement of judgment against firm
1153
Injunction against sale of partnership property under levy against one partner
1154
Levy on partnership property for individual debt of a partner
1156
Procedure in sale of partners interest for one partners debt
1158
Interest taken by purchaser upon sale of partnership property for individual partners debt
1164
Levy of execution on firm property for individual debtUniform Partnership Act
1168
Action after a change in membership
1169
Action by or against estate of surviving partner
1173
Proceeding against estate of deceased partner
1178
Surety on partnership bond
1184
CHAPTER XXVI
1186
Petition complaint or declarationStatement of partnership rela tion
1188
Complaint against partnership
1192
Complaint by or against surviving partner
1194
ComplaintsIn suits between partners
1196
Some particular examples
1200
Alleging legal conclusions
1202
Material matters
1203
Answer in actions between partners
1206
Crosscomplaint
1207
Extent of defense
1209
Defenses in suits between partners
1210
Reply
1211
Departure
1212
A mixed question of law and fact
1229
Proof of partnership agreement
1233
Proof of partnershipUniform Partnership Act
1235
Parol proof to establish partnership
1238
Proof of acts and conduct to show partnership
1239
Admissions by partnersGenerally
1240
Admissions and declarations in actions by third persons against partners
1243
Representations made in presence of partner or in course of busi ness
1246
Representations against interest
1247
Representations in interest
1248
Admissions by judgment
1249
Proof of firm name as prima facie evidence of partnership
1250
Use of individual names of partners in firm name
1251
Profit sharing as proof of partnership
1252
Proof of sharing in profits and losses
1254
Sharing in profits or profits and lossesPrima facie case
1255
Proof of sharing in profits and lossesNot conclusive
1256
Liability to third personsProof
1258
Suits between partnersProof
1260
Suits against third personsProof
1263
Intention
1264
Proof by holding out
1265
Proof by holding outEstoppel
1266
Proof by holding outActs constituting an estoppel
1267
Partnership liability by estoppelUniform Partnership Act
1269
Partnership in individual name
1272
Compelling production of partnership books
1275
Presumption of access to booksDenying correctness
1277
Partnership books and papers as evidenceAgainst third persons
1278
Partnership books and papers as evidenceIn favor of third persons
1279
Authority of partnerPresumption
1280
Liability of nominal partnersFirst rule
1282
Liability of nominal partnersSecond rule
1283
Liability of dormant partnerLimitation
1285
Further of authority of partnerParticular cases
1286
Authority of partner after dissolution
1288
DissolutionNotice of dissolution
1289
SECTION PAGE 927 Admissions after dissolution
1291
Admissions of surviving partner
1292
CHAPTER XXVIII
1295
Taxation of good will of partnership
1296
Place of taxation of partnership propertyGenerally
1297
Place of taxation under statutes of different states
1299
Massachusetts cases
1304
Michigan cases
1306
Taxation after dissolution
1307
Taxation of property of joint stock company
1308
Notice to redeem from tax sale
1309
CHAPTER XXIX
1311
Changing partnership into corporation
1313
Protection of minority interests
1315
When corporation is liable for debts of partnership which it suc ceeds
1317
Corporation liable for debts of partnershipIllustrations
1319
Transfer of assets of partnership to succeeding corporation
1320
Transfer of partnership assets to corporationConveyance neces sary
1321
Assumption of debts of partnership by succeeding corporation
1322
Liability of succeeding corporation for partnership debts without express assumption
1324
Corporation receiving partnership assetsPresumption as to liability for debts
1325
Statute of frauds as affecting assumption of debts
1328
Rights acquired by a corporation formed by members of a firm
1330
Partnership changed to corporationRights of beneficiaries of a deceased partner
1331
Rights of partners among themselves after incorporation
1334
Rights of creditors when partnership property is transferred to a corporation
1335
Transfer of partnership property to corporation made to hinder and delay creditors
1336
CHAPTER XXX
1339
Agreement and consideration
1341
Particular cases
1342
Good faith
1345
Property involved
1348
Power to bind coadventurers
1349
Abandonment of the adventure
1350
Right to profits
1352
Sharing of losses
1354
Contribution
1355
SettlementExpenses
1356
SettlementInterest
1358
SettlementAdvances
1359
Termination and duration
1360
ActionsIllustrations
1362
SetoffLimitation of actions
1365
Parties and pleading
1366
EvidenceJudgment
1367
Actions by or against third persons
1368
CHAPTER XXXI
1370
Distinguished from joint adventures and joint stock companies
1372
Origin and history
1374
Governed entirely by statutes
1376
Laws governing rights of partners
1377
Construction of limited partnership statutes
1378
Nature of business prescribed by law
1380
What certificate must contain
1381
Acknowledgment of certificate
1385
Affidavit of payment of contribution of limited partner
1386
Publication of notice
1388
Commencement and termination
1389
Contribution of limited partner
1390
Kind of property contributed
1391
Infant as partner
1392
Firm name and sign
1393
Liability of partners on contracts
1394
Estoppel
1396
Insolvency of partnership
1398
Assets applied to liabilities
1399
Dealings between general and limited partners
1400
Change of membership or nature of business conducted
1402
Impairment of capital
1404
Changing general to limited partnership
1405
InjunctionReceiver pleadings and trial
1407
Rights of creditors of limited partnership
1408
Assignment for benefit of creditors
1409
Limited partner as creditor
1410
Causes for dissolution
1411
Rights and liabilities of partners
1413
Rights of partners on dissolution
1415
CHAPTER XXXII
1417
Distinguished from corporations
1420
Distinguished from ordinary partnerships
1425
Distinguished from mining companies
1427
Legal status
1429
Taxation
1433
Statutory provisions
1434
Articles of association or constitution and bylaws
1436
Membership and its incidents
1438
OrganizationMeetings and election
1442
Capital stockIssue and transfer of certificates etc
1443
Property and funds
1447
Power to make contracts
1448
Actions by and against joint stock companies
1449
Dissolution
1451
CHAPTER XXXIII
1454
SECTION PAGE 1065 Introductory
1456
Body of contract
1457
Particular Clauses in Partnership Agreements 1067 Firm name
1458
Partnership to continue after retirement or death of partner
1459
One partner furnishing capital
1460
Increase of capital
1461
Patents as partnership property
1462
Vacations
1468
Majority to rule
1474
Payment of deceased partners share to his representatives
1482
Arbitration clauses in partnership agreements
1488
SECTION PAGE 1139 Of intention to withdraw
1490
Of desire to sell
1491
Of intention to purchase
1492
Of demand for inspection of business
1493
To firm debtor after dissolution
1494
Agreement for mercantile partnership
1495
Mercantile partnership contract
1497
Agreement between merchants
1499
Professional partnership contract
1503
Short form partnership agreement between lawyers
1504
Agreement between attorneysLong form
1505
Agreement where one partner is dormant
1509
Extension of partnership term indorsed on articles
1513
Continuation of business under new agreement
1514
Admission of new partner
1517
Miscellaneous Agreements and Forms 1159 Indorsement on articles of agreement to admit new partner
1518
Admission of partners son into firm
1519
Admission of partners legatee into firm
1520
Agreement by continuing partners to purchase retiring partners share
1521
Agreement for sale by retiring partner of his share in partnership to incoming partner with concurrence of continuing partners
1523
Assignment by retiring partner to continuing partner
1525
Assignment to surviving partner of deceased partners share
1528
Conveyance of share of retiring partner to copartners
1530
Charge on partners profits
1531
Bond indemnifying retiring partner against partnership debts
1532
Bond by surviving partners to secure payment of share of deceased partner and for indemnity
1533
Partnership bond with sureties to secure banking account
1534
Bond by partner to copartner and inventor for protection of secret process
1536
Assignment by partners for benefit of creditors with preferences
1538
Assignment of leasehold by one partner to another on dissolution of partnership After recitals of partners and of lease and of dissolution of partnership
1540
Habendum clause in deed to hold as partnership property
1541
Option to one partner to buy partnership property
1543
Appointment of an arbitrator in purusance of arbitration clause in articles of partnership
1544
Agreement for joint adventure or syndicate
1546
Preliminary agreement between partners as to formation of cor poration
1547
Limited partnership
1551
Proof of claim in oankruptcy by partnership
1552
Partnership petitionOfficial form
1553
Pleadings Generally 1187 Caption
1557
Petition for dissolution
1558
Pleading Causes for Dissolution 1190 Transfer of one partners interest
1559
Specific denial
1560
APPENDIX Text of Uniform Partnership Act pp 15611581
1561
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Página 1071 - Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, ie, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.
Página 1567 - A partnership is an association of two or more persons to carry on as co-owners a business for profit.
Página 1575 - On the death of a partner his right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his right in such property vests in his legal representative. Such surviving partner or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose. (e) A partner's right in specific partnership property is not subject to dower, curtesy,...
Página 949 - ... any corporation engaged principally in manufacturing, trading, printing, publishing or mercantile pursuits, owing debts to the amount of one thousand dollars or over, may be adjudged an Involuntary bankrupt upon default or an Impartial trial, and shall be subject to the provisions and entitled to the benefits of this Act.
Página 1569 - ... unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner.
Página 886 - Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.
Página 1581 - ... desire to continue the business in the same name, either by themselves or jointly with others, may do so, during the agreed term for the partnership and for that purpose may possess the partnership property, provided they secure the payment by bond approved by the court, or pay to any partner who had caused the dissolution wrongfully, the value of his interest in the partnership at the dissolution, less any damages recoverable under clause (2aII) of this section, and in like manner indemnify...
Página 945 - The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts.
Página 1579 - Dissolution. (1) After dissolution a partner can bind the partnership except as provided in Paragraph (3) (a) By any act appropriate for winding up partnership affairs or completing transactions unfinished at dissolution...
Página 1534 - ... their substitute or substitutes, shall lawfully do, or cause to be done, in or about the premises, by virtue of these presents.

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