Cornelius C. Lent, Resp’t, v. Isaac T. Montross, App’lt.(Supreme Court, General Term, Second Department,Headnote
' Receiver—Co-partnership—Dissolution—Agreement.By the agreement of co-partnership between the parties hereto it was-provided upon dissolution thereof V either party may make in writing an offer of the price at which he will buy the interest of the other or sell to the other his own interest at the same price.” Held, that the defendant having failed to exercise the option, cannot invoke the agreement to defeat a suit brought to wind up the partnership in the ordinary way.
Appeal from an order appointing a receiver of the assets of a co partnership pending its dissolution.
The seventh section of the articles of copartnership was as follows: Upon the dissolution of said co-partnership, if both parties shall be living and in health and mental faculties suitable for the transaction of business, either party may make in writing an offer to the other of the price at which he will buy the interest of the other, or sell to the other his own interest at the same price; and such other party shall within twenty days thereafter signify his election whether he will buy or sell at such price, and if he shall fail to do so by notice in writing within that time, the party making such offer may within twenty day after the expiration of the time herein limited to such other party to accept such offer, buy or sell at his own election according to his said offer.
Eugene B. Travis, for app’lt; Calvin Frost, for resp’t.
It is not necessary to determine whether, after the expiration of five years, the agreement about making an offer in case of dissolution, was binding, as we construe that to be a mere option, open to either of the parties when dissolution took place.
The words are, “either party may make an offer.” If the word “may” is to read as “must,” who shall determine which party shall make the offer ? It was open to the defendant to make the offer as soon as he received notice of the intent of the plaintiff to dissolve, when, if the clause was binding, he might have compelled the plaintiff to elect-whether to buy or sell his interest.
But defendant failing to exercise the option, we cannot see how he can invoke the agreement to defeat the suit.
Each has an equal right, and it is equally the duty of each