Washington Woodward v. Cowing , 41 Me. 9 ( 1856 )

Tenney, C. J.

The complainant seeks relief from this Court, as having power to hear and determine in equity all cases of partnership, when the parties have not a plain and adequate remedy at law.

That the Court may be clothed with jurisdiction, the parties before us must sustain to each other the relation of partners, and the association of the several individuals must constitute a partnership in law. If the parties are joint owners or tenants in common, having a distinct or independent interest in the property, although that interest is undivided; and neither can transfer or dispose of the whole property, or act for the others in relation thereto; but merely for his own share, and to the extent of his own several right, they are not co-partners, and this Court has no power as a Court of equity to determine their case. R. S., c. 96, § 10; Story on Part. § 89.

It is settled, that in a partnership, each partner in ordinary cases, and in the absence of fraud on the part of the purchaser, has the complete jus disjponendi of the whole partnership interest, and is considered to be the authorized agent of the firm. He can sell the effects, or compound or discharge the partnership debts. 3 Kent’s Com. Lee. 43; Knowlton v. Reed, 38 Maine, 246.

The parties to this bill and others associated together, for the purpose of erecting a meeting-house to be occupied by the East Brunswick Baptist church and society; and in writing they each agreed and promised to pay the sum set against their respective names. The subscribers were to choose from their own number a committee of three, whose duty was declared therein to be, to contract for the building of the meeting-house, which on being completed, was to be the property of the subscribers, in proportion to the amount invested by each individual, and to be offered for sale on such terms as the majority of the subscribers should determine.

The subscribers, having severally promised to pay each a certain sum, amounting together to the sum of twelve hundred dollars, met together, and chose a moderator, a clerk, a treasurer, and a building committee, consisting of five of their number, and the clerk made a record of the doings at that meeting, and of future meetings, which were called and held from time to time, until sometime in the year 1853. The building committee made a contract in behalf of the subscribers with A. C. Raymond to erect and finish the meetinghouse above the underpinning, which seems to have been done by the subscribers themselves or others. The house was completed, so that the same was accepted at a meeting holden on June 24, 1848, by the subscribers to the contract, as appears by their records; many of the pews were sold in pursuance of authority from the subscribers, but the avails were insufficient to cover all the expenditures, in the erection and completion of the house. Several of the subscribers paid more than the sum promised, and others did not pay the full amount subscribed. The complainant alleges, that he has expended in and about the erection and completion of the house a large amount beyond the subscription; and in this bill he seeks an adjustment of the respective claims on account of payments made by him and other subscribers, more than the sums promised by each, with each other, and with those who have paid less than the sums severally subscribed. It is insisted, however, by the defendants, that it was in furtherance of the contract with Raymond, and on his credit, that the complainant paid much of the money alleged to have been expended by him, and not on the credit of the other subscribers ; and that they have never promised or in any way become liable to pay a greater amount than that severally subscribed by them.

Attempts were made by the complainant and others of the associates, to adjust their respective claims at meetings called for that purpose, but without success, many of them declining to do any thing promotive of that object, professing however to be in “ readiness to pay if the others will.”

On examination of the subscription contract, which is the basis of the association, and which does not appear to have been abandoned at any time after its inception, it is manifest, that the meeting-house was designed to be held by those, who should contribute funds for its erection, and for finishing the same, as owners in common, and not as a co-partnership. The building of the house was the object, which the subscribers sought; but they were to own in proportion to the amount of their investment, and the whole could be sold only on such terms as the majority of the owners should approve; therein withholding from each, the authority, to act for the others. The parties have conformed to this principle, which they adopted at the beginning, and no one has attempted to act for the others, as a partner could act for the firm. Rut failing to unite in any measures for the purpose of reconciling their difficulties, the complainant has invoked the aid of this Court as a court of equity. We think the jurisdiction is not conferred by the statute, and it is to that alone, that it must look for its authority. Bill dismissed with costs.

Rice, Cutting, Goodenow, and Hathaway, J. J., concurred.