Barclay v. Barrie

Permanent incapacity of a partner constitutes •good ground a dissolution of the partnership. Upon rer to the complaint, it must be assumed that the defendant is practically incapacitated from personal attention to the.duties assumed by him under the copartnership agreement.

The argument of the learned counsel for the defendant that the language of the seventh clause of the agreement is to be construed as providing an exclusive remedy of damages for breach of the obligations ■of either party to render personal services is not.convincing. The obvious purpose of this clause was to afford the aggrieved party the right to claim damages from the other as therein provided, and to furnish the defaulting party a locus pcenitentise and to remedy the trouble complained of. The reasoning of the counsel is too subtle and refined, and omits sufficiently to recognize the import attaching to the words "or to any relief whatsoever” in the seventh clause. The contract contemplated that each partner give a reasonable amount of time •and attention to the business, but assuredly .'this did not mean that a partner permanently stricken with disease and disabled from giving any attention to the business was to be absolved from the obligation to devote a “reasonable” amount of time, as contemplated by the parties^ when they entered into the partnership agreement.

It seems to me" that the complaint'states a sufficient cause of action, . and the demurrer must be overruled, with costs, with leave to defendant to answer upon payment of costs.

Demurrer overruled, with costs, with leave to defendant to answer upon payment of costs.