PARTNERSHIPS
Devaynes v Noble (1861) 1 Mer 572; E.R. 781 (Claytons Ca Rule)护理部工作总结
Rule: All funds drawn out of an account are debited against sums paid into the account in chronological order. The sums first paid in will be the first to be ud either in whole or in part by withdrawals. (FIFO rule)
Cox v Hickman (1860) 8 H.L. E.R. 431
表示说的词S and S traded in a partnership under the name of ‘S & S’. While in financial difficulties they executed a deed with creditors, where their business would be carried on by trustees. The deed allowed creditors to make rules for the business, to have the option to wind up, and any profits were to be divided between all creditors. The creditors acting as trustees incurred debts from H, H attempted to sue C and W whom were among others appointed as trustees but they never acted in the position of trustees. H’s action failed as there was no holding out of C and W as partners and H had no knowledge of them or the deed of arrangement, thus C and W were not estopped from denying liability.
Rule: Persons who share in profits of a business are not, for that reason alone, to be considered as partners of that business. It is necessary to review the relationship between the parties.英文手抄报
Davies v Barlow (1890) 2.L.R. (NSW) 66
It was held that a partner could not transfer his interest to another without the connt of his co-partners. This is becau the characteristics of mutual trust and confidence will be strained if a stranger was introduced to the partnership without the other partners’ connt.
Re Agricultural Insurance Co. (1870)L.R. 5 Ch App. 725 (Bairds Ca)
上司和下属的关系
The relationship between partners is a fiduciary one. Each partner owes each co-partner a duty to act within the terms of the agreement and to act in good faith. For instance, an agent is employed to create a legal relationship solely between the principal and third party. However, where a partner transacts on behalf of the partnership, that partner in a n is an agent is also a principal along with the other partners. Thus, binding the partnership in a contract.
Polkinghorne v Holland (1934) 51 C.L.R. 143
In a firm of solicitors, partner X advid Mrs. P to ll her blue chip investments and invest in a company he had t up for a friend. The company was a sham and the money was not en again nor was Partner X. Mrs. P sued the firm and her claim for loss was successful against the innoce
nt partners. Although, the giving of financial advice is outside the ordinary cour of business and partner X had no authority to engage in such conduct, liability emerged becau as a solicitor, partner X should have either advid a client; how such information can be obtained or undertake to acquire the information from a competent financial advisor.
Mandelberg v Adams (1930) 31 S.R. (N.S.W) 50
In a partnership agreement between moneylenders, there was no express provision allowing a partner to borrow money. Thus a dormant partner successfully sued an active partner for borrowing money from the partnership.
Goldberg v Jenkins (1889) 15 VLR 36
The firm borrowed money at usual market rates of 6-10%. One partner borrowed money at an exorbitant rate of 60% it was held that this action was not carried out in the usual way and thus not binding upon the co-partners.
Higgins v Beauchamp (1914) 3 KB 1192
The terms of the partnership deed provided: no partner should without the connt of the other partn
ers contract on behalf of the firm to borrow money. Miles, one of the partners borrowed funds reprenting that it was to be ud for the partnership purpos, instead he misappropriated it. It was held on appeal, that the partners were not liable as there was no actual authority given and it was not carrying out business in the usual way.
Goldberg v Jenkins (1889) 15 VLR 36
A partner borrowed money in the name of the partnership at an excessive rate of 60% when the partnership normally borrowed money at market rates of between 6-10%. The courts held that the partner borrowed funds at an excessive and unrealistic rate of 60%, this was acting beyond the ‘usual way’ and the firm was not bound to the contract.
Edmonds v Bushell (1865) L.R. 1 Q.B. 97
A employed
B to manage A’s business. A expressively instructed B not to draw or accept bills of exchange. B accepted a bill of exchange. It was held that A was liable, it is important to note that this decision also reflects the law of agency and partnerships. As partners are generally liable unless the third party knows that the partner did not have the relevant authority to bind the firm.
London Chartered Bank of Australia v Kerr (1865) 4 V.L.R. (L) 330
弹跳力
A partner gave a promissory note which he had signed in the name of the firm to the bank in payment of his own private debt. The partner had also done this previously with other private debts for the last 6 months. It was held, as the other partners had not objected to the previous cheque transactions, the bank were right to assume that his co-partners had authorid the promissory note.
Lynch v Stiff (1944) 50 A.L.R. 341
A firm of solicitors held out on their letterhead that employees D1 and D2 were partners. P had always dealt with D2 for legal counl. P invested money with the D2 who then misappropriated it. P then sued D1 and D2 for compensation on the basis that they were held out as partners. P’s ca failed against D1, as P’s decision to invest was not influenced by D1 as a partner. P’s ca against D2 was successful, as P’s decision was influenced by P’s understanding that D2 was a partner.
D & H Bunney Pty Ltd v Atkins & Naughton [1961] V.R. 31
A and
B intended to go into a partnership together as plumbers and they opened a credit account with C, in
forming
地理手抄报
C that the partnership had commenced. While in truth the partnership did not commence. B purchad goods from C which charged the purchas to the account. C nt monthly accounts in the name of A and B in which A paid two of the accounts with his own cheques. Later when B did not pay his accounts, C sued A and B. A’s defence that he was not liable for B’s debt failed as A was liable under the law of estoppel.
Rolfe and Bank of Australasia v Flower Salting & Co (1866) LR 1 PC 27
关于感恩的手抄报
A, B and C were in a partnership, after a while they decided to take on: X and Y as partners. The newly constituted firm continued to trade under the same name and in the same manner, keeping the same accounts and books as the old firm. The old firm had a debt of 80 000
pounds to the respondent company. It was held, that where the creditors continue to deal with the newly constituted firm and they have complete knowledge of the change in its membership, they impliedly agreed to accept the new firm as debtor in place of the old firm.
Brundell v Alexander (1886) 12 V.L.R. 908
A and K were in a butcher partnership. They purchad inventory from Brundell. After the dissolution of their partnership, K continued to carry on business under the same name and in that name he purchad further inventory from Brundell. It was held that A was liable for the price of meat supplied after dissolution as there was no evidence of notice given to Brundell about his retirement.
Kelly v Tucker (1907) 5 C.L.R. 1
K & T entered into an oral partnership agreement. Their business was purchasing hors in Australia and then relling them in South Africa. Later the agreement changed, instead of lling the hors in South Africa, the hors were to be entered into races in Australia. Under the agreement T provided 800 pounds as capital whereas K was to do all the active work in the business. It was held on dissolution that T was entitled to be paid his capital first, followed by the distribution of profits in the agreed ratios. Other matters germane to this ca:
•Partners may limit the powers of partners to engage in management
•Termination of giving one partner notice was sufficient as the partnership was for an indefinite period – s37
Kilpatrick v Mckay (1878) 4 V.L.R. 28
M bought a hotel and agreed with K that it should be carried on as a partnership. K contributed only a small proportion of the purcha price and on dissolution of the partnership when M sold the hotel. K was entitled to half of the profits as there was no provision in the partnership agreement referring to the share of profits.
Jebara v Ottoman Bank (1927) 2 Q.B. 254
An agent acting without authority had a right to be indemnified from his principal only if he was unable to communicate with the principal and had acted in good faith for the principal’s interest.
Birtchnell v Equity Trustees Executors and Agency Co. Ltd 42 C.L.R. 384
A partner in a real estate firm shared profits with the firm’s client arising from land sales, without disclosing this information to the other partners in the firm. The conflict of interest was revealed after the partner died. The partners sued the executor of the decead partner’s estate for an account of tho profits. It was held, the decead partner purd his parate interests and he should have consulted with his partners as the benefit aro out of the connection with the firm.
Queensland Mines Ltd v Hudson (1975-1976) CLC
The managing director; Hudson, purchad mining exploration licens under conditions where the company was financially unable to. He made full disclosure of his plans to purcha the licens and then he resigned. He developed the claims and found the existence of minerals. The rights were then sold to another company with Hudson being entitled to royalties. Control of Queensland Mines then changed and it sued Hudson stating that his royalties aro from his position as managing director. Queensland Mines action failed as he fully informed Queensland Mines shareholders of his interest, the company renounced the opportunity and gave connt to Hudson to develop the mining ventures.
Glassington v Thwaites (1822) 1 Sim and St 124; 57 E.R. 50
帮助他人的作文A, B, C and D are owners of a morning newspaper and A, B and C are owners of an evening newspaper. It was held that D can prevent A, B and C from first publishing a story in the evening paper obtained from connections of the morning paper and at the expen of the firm comprising of A, B, C and D.
Canny Gabriel Advertising Ltd v Volume Sales (Finance) Pty Ltd (1974) 48 A.L.J.R.
A promoter managed the tour of 2 singers touring Australia and arranged finance through Volume Sales. The promoter agreed to share profits with the financer. The advance was described as a ‘loan to the joint venture’ and was repayable prior to the division of profits, which were to be divided equally between the venturers. Box office proceeds were to be paid into an account in the financier’s name. In the event of the contract failing, the advance was to be repaid first. On the following day, the promoter granted an equitable charge over its undertaking, including its box office receipts, to an advertising agency. The High Court held that the joint venture was in fact a partnership and as a result the courts refud to give the creditors a higher right or interest to the partnership property over the partners themlves.
