Слике страница
PDF
ePub

business; and such agreement may be inferred from the course of dealing between the creditor having knowledge of the dissolution and the person or partnership continuing the business.

(3) Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligations.

(4) The individual property of a deceased partner shall be liable for all obligations of the partnership incurred while he was a partner but subject to the prior payment of his separate debts.

Section 37. Right to Wind Up. Unless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, however, that any partner, his legal representative or his assignee, upon cause shown, may obtain winding up by the court.

Section 38. Rights of Partners to Application of Partnership Property. (1) When dissolution is caused in any way, except in contravention of the partnership agreement, each partner as against his co-partners and all persons claiming through them in respect of their interests in the partnership, unless otherwise agreed, may have the partnership property applied to discharge its liabilities, and the surplus applied to pay in cash the net amount owing to the respective partners. But if dissolution is caused by expulsion of a partner, bona fide under the partnership agreement and if the expelled partner is discharged from all partnership liabilities, either by payment or agreement under section 36 (2), he shall receive in cash only the net amount due him from the partnership.

(2) When dissolution is caused in contravention of the partnership agreement the rights of the partners shall be as follows:

(a) Each partner who has not caused dissolution wrongfully shall
have,

(I) All the rights specified in paragraph (1) of this section, and
(II) The right, as against each partner who has caused the dissolution
wrongfully, to damages for breach of the agreement.

(b) The partners who have not caused the dissolution wrongfully,
if they all 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 pay-
ment by bond approved by the court, or pay to any partner who
has 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
him against all present or future partnership liabilities.
(c) A partner who has caused the dissolution wrongfully shall have:
(I) If the business is not continued under the provisions of paragraph
(2b) all the rights of a partner under paragraph (I), subject to
clause (2aII), of this section, (II). If the business is continued
under paragraph (2b) of this section the right as against his
co-partners and all claiming through them in respect of their in-
terests in the partnership, to have the value of his interest in
the partnership, less any damages caused to his co-partners by
the dissolution, ascertained and paid to him in cash, or the pay-
ment secured by bond approved by the court, and to be released

from all existing liabilities of the partnership; but in ascertaining the value of the partner's interest the value of the good-will of the business shall not be considered.

Section 39. Rights Where Partnership Is Dissolved for Fraud or Misrepresentation. Where a partnership contract is rescinded on the ground of the fraud or misrepresentation of one of the parties thereto, the party entitled to rescind is, without prejudice to any other right, entitled, (a) To a lien on, or right of retention of, the surplus of the partnership property after satisfying the partnership liabilities to third persons for any sum of money paid by him for the purchase of an interest in the partnership and for any capital or advances contributed by him; and

(b) To stand, after all liabilities to third persons have been satisfied, in the place of the creditors of the partnership for any payments made by him in respect of the partnership liabilities; and

(c) To be indemnified by the person guilty of the fraud or making the representation against all debts and liabilities of the partnership. Section 40. Rules for Distribution. In settling accounts between the partners after dissolution, the following rules shall be observed, subject to any agreement to the contrary:

(a) The assets of the partnership are;

(I) The partnership property,

(II) The contributions of the partners necessary for the payment of all the liabilities specified in clause (b) of this paragraph.

(b) The liabilities of the partnership shall rank in order of payment, as follows:

(I) Those owing to creditors other than partners,

(II) Those owing to partners other than for capital and profits,
(III) Those owing to partners in respect of capital,

(IV) Those owing to partners in respect of profits.

(c) The assets shall be applied in the order of their declaration in clause (a) of this paragraph to the satisfaction of the liabilities. (d) The partners shall contribute, as provided by Section 18 (a) the amount necessary to satisfy the liabilities; but if any, but not all, of the partners are insolvent, or, not being subject to process, refuse to contribute, the other partners shall contribute their share of the liabilities, and, in the relative proportions in which they share the profits, the additional amount necessary to pay the liabilities.

(e) An assignee for the benefit of creditors or any person appointed by the court shall have the right to enforce the contributions specified in clause (d) of this paragraph.

(f) Any partner or his legal representative shall have the right to
enforce the contributions specified in clause (d) of this para-
graph, to the extent of the amount which he has paid in ex-
cess of his share of the liability.

(g) The individual property of a deceased partner shall be liable for
the contributions specified in clause (d) of this paragraph.
(h) When partnership property and the individual properties of the
partners are in possession of a court for distribution, partnership
creditors shall have priority on partnership property and separ-
ate creditors on individual property, saving the rights of lien or
secured creditors as heretofore.

(i) Where a partner has become bankrupt or his estate is insolvent
the claims against his separate property shall rank in the follow-
ing order:

I. Those owing to separate creditors,

II. Those owing to partnership creditors,

III. Those owing to partners by way of contribution.

Section 41. Liability of Persons Continuing the Business In Certain Cases. (1) When any new partner is admitted into an existing partnership, or when any partner retires and assigns (or the representative of the deceased partner assigns) his rights in partnership property to two or more of the partners, or to one or more of the partners, or to one or more of the partners and one or more third persons, if the business is continued without liquidation of the partnership affairs, creditors of the first or dissolved partnership are also creditors of the partnership so continuing the business.

(2) When all but one partner retire and assign (or the representative of a deceased partner assigns) their rights in partnership property to the remaining partner, who continues the business without liquidation of partnership affairs, either alone or with others, creditors of the dissolved partnership are also creditors of the person or partnership so continuing the business.

(3) When any partner retires or dies and the business of the dissolved partnership is continued as set forth in paragraphs (1) and (2) of this section, with the consent of the retired partners or the representative of the deceased partner, but without any assignment of his right in partnership property, rights of creditors of the dissolved partnership and of the creditors of the person or partnership continuing the business shall be as if such assignment had been made.

(4) When all the partners or their representatives assign their rights in partnership property to one or more third persons who promise to pay the debts and who continue the business of the dissolved partnership, creditors of the dissolved partnership are also creditors of the person or partnership continuing the business.

(5) When any partner wrongfully causes a dissolution and the remaining partners continue the business under the provisions of section 38 (2b), either alone or with others, and without liquidation of the partnership affairs, creditors of the dissolved partnership are also creditors of the person or partnership continuing the business.

(6) When a partner is expelled and the remaining partners continue the business either alone or with others, without liquidation of the partnership affairs, creditors of the dissolved partnership are also creditors of the person or partnership continuing the business.

(7) The liability of a third person becoming a partner in the partnership continuing the business, under this section, to the creditors of the dissolved partnership shall be satisfied out of partnership property only.

(8) When the business of a partnership after dissolution is continued under any conditions set forth in this section, the creditors of the dissolved partnership, as against the separate creditors of the retiring or deceased partner or the representative of the deceased partner have a prior right to any claim of the retired partner or the representative of the deceased partner against the person or partnership continuing the business, on account of the retired or deceased partner's interest in the dissolved partnership or on account of any consideration promised for such interest or for his right in partnership property.

(9) Nothing in this section shall be held to modify any right of creditors to set aside any assignment on the ground of fraud.

(10) The use by the person or partnership continuing the business of the partnership name, or the name of a deceased partner as part thereof,

shall not of itself make the individual property of the deceased partner liable for any debts contracted by such person or partnership.

Section 42. Rights of Retiring or Estate of Deceased Partner When the Business Is Continued. When any partner retires or dies, and the business is continued under any of the conditions set forth in sections 41 (1, 2, 3, 5, 6), or section 38 (2b), without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership; provided that the creditors of the dissolved partnership as against the separate creditors, or the representative of the retired or deceased partner, shall have priority on any claim arising under this section, as provided by section 41 (8) of this act. Section 43. Accrual of Actions. The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.

PART VII.

REPEALING PROVISIONS

Section 44. Legislation Repealed. All acts or parts of acts inconsistent with this act are hereby repealed. Approved March 12, 1923.

Unorganized Counties

CHAPTER 297.

(S. B. 105.)

DEPOSITARIES OF FUNDS

AN ACT Entitled, An Act to Amend Section 6888 of the South Dakota Revised Code of 1919, Relating to Depositaries for Funds Belonging to Unorganized Counties, and Administered by Organized Counties.

Be It Enacted by the Legislature of the State of South Dakota:

Section 1. That Section 6888 of the South Dakota Revised Code of 1919 be amended to read as follows:

Section 6888. Deposits, Interest, How Regulated. The county treasurer shall deposit and at all times keep on deposit in state, national or private banks within the county, having approved and responsible financial standing, the money in his hands as county treasurer. Provided that Section 3816 shall not prevent the designation as depositaries or the keeping of county funds in any bank in which a county official may be a stockholder or officer. Any such bank may apply for the privilege of

keeping such funds upon the conditions herein prescribed, and shall state in the application the rate of interest it will pay on such deposits and the amount of money desired, provided that no bank at any time shall have on deposit county funds in excess of fifty per cent of the capital and surplus of such bank. Provided, that if such banks fail to make application on or before the first day of April of each year, or if the rate of interest offered in all applications received is too low, such application shall be rejected and it shall be the duty of the county treasurer to advertise for applications for the handling of such funds by banks outside as well as within the county. The county treasurer shall advertise for such applications in the official newspapers of the county, and not exceeding five other legal newspapers in the state, and the banks which agree to pay the highest rates of interest for such deposits shall be accepted and designated as depositaries. All moneys shall be deposited in the name of the treasurer as county treasurer, and for all such deposits he shall take a receipt in duplicate, one to be retained in his office and the other filed forwith with the county auditor, who shall enter the amount in a book kept for that purpose, and all checks drawn against such deposits shall be credited on the same book by the auditor before delivery to the treasurer, which book shall be kept in such manner as to show at all times the amount of money deposited with such bank or banks. All such deposits shall be subject to payment when demanded by the county treasurer on his check, countersigned by the county auditor, and all banks receiving and holding such deposits shall be required to pay to the county, for the privilege of keeping such deposits, interest amounting to not less than two per cent and not more than four per cent per annum upon the amount so deposited as hereinafter provided, and subject always to such regulations as are imposed by law, and it shall be the duty of the board of county commissioners to approve such applications; provided, that such applicants as are not protected by the state bank guaranty fund shall have furnished a good and sufficient bond to the county as now required by law. Provided, that if the board of county commissioners at any time after having made such designation, for good and sufficient cause deems the security given insufficient, it shall require a new bond, or it may revoke its designation of a depositary and again designate another depositary or depositaries as above provided. The amount to be paid by any and all banks under and by the provisions of this section for the privilege of keeping public funds on deposit, shall be computed on the daily balances of the public money kept on deposit therewith and shall be paid to the county on the first day of each month for the preceding month, and the amounts paid to the county for the privilege of keeping the same on deposit as aforesaid shall be credited by the author and treasurer to the account of the county general fund. Provided, further, that all provisions herein made shall apply with equal force and in like manner to all funds of unorganized counties which are now administered and controlled by organized counties, and it shall be the duty of the officers of such organized county SO administering the funds of an unorganized county to in like manner advertise for bids, designate depositaries, require depositary bond, collect interest and credit the same to such unorganized county, and generally do all other things required to be done in the case of fund belonging to an organized county, as herein designated, except that the bank or banks of an unorganized county shall first be given the privilege of making an application for the keeping of the funds of the unorganized county, and if no application is made on or before April 1st of each year, or if the rate of interest offered is too low, the application shall be re

« ПретходнаНастави »