and January, 1871, he sent orders for said candy for various parties in the State of New York to the amount of $103, and afterward, in August and September, 1871, collected the pay for the same as the plaintiffs' agent. In November and December, 1870, and February and March, 1871, the defendant sold and sent orders to the plaintiffs from various parties in the State of Massachusetts for said candy to the amount of $210.52, and afterward, in August and October, 1871, collected pay for the same as the plaintiffs' agent. During the years 1870 and 1871 the defendant sold and sent orders for said candy from various parties in Vermont to the amount of $215.57, and afterward, in August, September, and October, 1871, collected the pay for the same as the plaintiffs' agent.

"On the delivery of said goods by the plaintiffs they charged the same to the purchasers on their books, and on receiving notice from the defendant of said collections they credited to such purchasers the amounts thereof. The plaintiffs delivered to the defendant four silver dollars and four silver half-dollars as samples of the prizes contained in certain of said prize candy packages, which, with the premium thereon, were of the value of $6.72, and which the defendant has never returned nor accounted for to the plaintiff. It is agreed that the commission to which the defendant is entitled is equal to and shall be set off against items in the plaintiffs' favor; specification not included in the amounts aforesaid.

"Said prize candies were of three kinds, and were known and called the 'Challenge,' 'Gem,' and 'United States Silver Coin,' and were put up in packages designed to be sold at retail for a certain price per package. Each package, in addition to a quantity of candy, contained a prize of some value; and the inducement to purchase one or more of the packages at retail was the chance of receiving with the candy a prize, some of which were of greater value, and some of less value, than the price paid. The plaintiffs, at St. Albans, put up said candy in packages, with a prize in each package, and put up the packages in boxes containing a certain number thereof. The plaintiffs sold said candy by the box only, and each box of the several kinds contained the same amount of candy and the same prizes, and the prizes contained in each box were printed on the outside and on printed circulars; and cards were used by the plaintiffs, and the defendant as their agent, in connection with the sale thereof, stating particularly the kind and value of each article contained in the box as a prize; and each purchaser thereof from the plaintiffs was informed and knew the amount of candy and the exact number, value, and kind of articles as prizes contained in each box that he bought; and the plaintiffs knew that such purchasers

intended to sell the same at retail, in the vicinity of the place of purchase, and that the prizes would be drawn as hereinbefore stated by the retail purchasers thereof.

"In respect to said business, and in the collection of said money, the defendant acted solely as the agent of the plaintiffs. On the 18th of October, 1871, the plaintiffs demanded of the defendant to account to them for the money collected by him as aforesaid, and said silver coins, and to pay over the amount thereof to them, but the defendant absolutely refused, and ever since hath refused so to do, and has never paid the same nor any part thereof.

"If upon the foregoing facts the Court is of opinion that the plaintiffs are entitled to recoyer for the sums as stated, which were collected upon sales in the States of New York, Massachusetts, and Vermont, or either of said States, or for said silver coins, judgment shall be rendered for the plaintiffs for such sums, and interest from the date of collection of the money and the date of the delivery of the coin. If the plaintiffs are not entitled to recover in respect of any of said items, then judgment shall be rendered for the defendant to recover his costs."

An agreement was also made as to some of the provisions of the statutes of New York and Massachusetts relating to offenses against public policy in force at the time of said sales. The Court rendered judgment for the plaintiff, pro forma, to recover the full amount claimed, with interest thereon as stipulated, and found that the defendant received said money in a fiduciary capacity and converted the same to his own use, and adjudged, pro forma, that the cause of action arose from the willful and malicious act and neglect of the defendant, and that he ought to be confined in close jail; to all which the defendant excepted.

PIERPOINT, C. J. We do not find it necessary in this case to consider the question as to whether the contract for the sale of the property referred to, by the plaintiffs, to the several persons who purchased it, were contracts made in violation of law, and therefore void or not. This action is not between the parties to those contracts; neither is it founded upon or brought to enforce them. If those contracts were illegal the law will not aid either party in respect to them; it will.not allow the seller to sue for and recover the price of the property sold if it has not been paid; if it has been paid, the purchaser cannot sue for and recover it back. The facts in this case show that the purchasers paid the money to the plaintiffs, not to the plaintiffs personally, but to the defendant as the agent of the plaintiffs authorized to receive it. When the money was so paid it became the plaintiffs' money, and when it was received by the defendant as such agent the law, in consideration

thereof, implies a promise on the part of the defendant to pay it over to his principals, the plaintiffs; it is this obligation that the present action is brought to enforce; no illegality attaches to this contract. But the defendant insists that, inasmuch as the plaintiff could not have enforced the contracts of sale as between himself and the purchaser, therefore, as the purchaser has performed the contracts by paying the money to the plaintiffs through me, as their agent, I can now set up the illegality of the contract of sale to defeat an action brought to enforce a contract on my part to pay the money that I as agent receive over to my principal. In other words, because my principal did not receive the money on a legal contract, I am at liberty to steal the money, appropriate it to my own use, and set my principal at defiance. We think the law is well settled otherwise, and the fact that the defendant acted as the agent of the plaintiffs in obtaining orders for the goods does not vary the case: Tenent v. Elliot, 1 B. & P. 2; Armstong. v. Toller, 11 Wheat, 257; Evans v. City of Trenton, 4 Zab. (N. J.) 764.

We think the certificate granted by the County Court was properly granted. It has been urged in behalf of the defendant that the zeal with which he has defended this case shows that he intended no wrong; but we think the man who receives money in a fiduciary capacity, and refuses to pay it over, does not improve his condition by the tenacity with which he holds on to it.

Judgment of the County Court affirmed.

DISSOLUTION AND NOTICE

HOARD V. CLUM

31 Minn. 186, 17 N. W. Rep. 275 (1883)

Action for an accounting and the winding up of the affairs of a partnership. The plaintiffs in the action are three of the partners and the widow and heirs-at-law of a fourth partner, and the defendant is the only other partner. From the articles which are dated March 15, 1880, it appears that the partnership was formed, under the name of the Clum Compounding Company, for the purpose of manufacturing and selling a medicine, and that the partnership was "to have an existence of thirty years from the date of these articles, unless sooner dissolved by mutual consent." The articles also provide for the taking of inventories at stated times, and that, in case any member of the partnership may wish at any time to dispose of his interest in the business, the other partners are to have the right to purchase such interest by paying its value as determined by the last preceding inventory. The

articles then provide that "in case of death of any member of the company, the heirs of such member may retain their interest therein, with all the rights and privileges of the original members; and the administrator of his estate, or the executor under his will, shall represent such heir or heirs at the meetings (or otherwise) of said company, so as to share the burden of management; and in the event that this cannot be done, the company shall have the right to purchase the interest of such deceased member in the same manner, and for the same amount, as in the case of a member wishing to sell as before stated. Nothing in the foregoing articles is to be construed as meaning that the company is compelled to pay at the inventory price, but it simply gives the right to buy on the above-named terms if it chooses to do so; and each party to this agreement hereby grants such right and privilege to buy such retiring or deceased party's interest on above-named terms; the company reserving the right to buy at better figure and terms if they can." The complaint further alleges the adoption of a resolution, on February 17, 1882, for the discontinuance of business and the dissolution of the partnership, and due notice thereof given to defendant; also the death of one of the partners, on April 1, 1882, and the refusal of each and all of the plaintiffs to purchase the interest of the deceased partner. Defendant demurred to the complaint on the grounds (1) that there is a defect of parties plaintiff, and (2) that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled and the defendant appealed.

BERRY, J. 1. An excess of parties is not ground of demurrer as "a defect of parties," in the meaning of Gen. St. 1878, c. 66, 92, subd, 4; Pomeroy on Remedies, 206; Richtmyer vs. Richtmyer, 50 Barb. (N. Y.) 55; Allen v. City of Buffalo, 38 N. Y. 280; Lewis v. Williams, 3 Minn. 95 (151).

2. Three members of a partnership firm and the heirs of a deceased fourth bring this action against the remaining member, for the purpose (1) of having the partnership adjudged dissolved; (2) of having the partnership wound up, and, to that end, an accounting had, a receiver appointed, its assets converted, its debts paid, and the rights of the partners among themselves ascertained and adjusted.

In the absence of previous agreement to the contrary, the death of a partner works a total dissolution of a partnership; that is to say, a dissolution both as respects the deceased and the surviving partners: Pollack on Partnership,

Story on Partnership,

183; Collyer on Partnership, 103, 106; 317, 319 a; Marlett v. Jackman, 3 Allen (Mass.) 287; Roberts v. Kelsey, 38 Mich. 602; I Lindley on Partnership, 231. A simple provision in the articles for the continuance of

the partnership for a fixed period, as, in the present instance, for thirty years, is not such an agreement: Collyer on Partnership, # # 100, 105; Crawford v. Hamilton, 3 Madd. 251; Crosbie v. Guion, 23 Beav. 518; Story on Partnership, 319, a. Mining partnerships appear to be governed by somewhat different rules: Jones v. Clark, 42 Cal. 180. In case of such dissolution, the right of surviving partners and of the representative of a deceased partner to have the partnership wound up, and any surplus property distributed, is matter of course; 1 Collyer on Partnership, 107.

In the case of bar the partnership was dissolved by the death of the partner Hoard. The articles contain no stipulation for the continuance of the business of the concern, except upon specified contingencies, none of which have occurred, and none of which, therefore, cut any material figure in the case. It follows that the three partners plaintiff can maintain this action against the partner who refuses to recognize the dissolution, and to co-operate in closing up and adjusting the business of the concern. As respects their right to maintain it, it is not important that the heirs of the fourth partner, who are joined with them as plaintiffs, have alleged no facts to show that they are proper parties to the action, nor that the executor or administrator of the deceased is not joined; for no objection, as respects parties, have been taken, except that there is a defect of parties on account of the joinder of the heirs, and this we have disposed of.

Order affirmed.

CONTINUANCE OF PARTNERSHIP AFTER DEATH OF ONE OF THE PARTNERS

JONES V. WALKER

103 U. S. 444, 26 L. Ed. 404 (1880)

W. H. Walker, who was a large dealer in liquors, in partnership with his son Frederick, made his will in July, 1870. One of the clauses of the will provided for the continuance of the partnership and the conduct of this business after his death.

It is in this language:

"It is my wish that my son Frederick carry on the business of W. H. Walker & Co. in that name and style, and in my storehouse where it is now carried on, giving him power to change the place, until my youngest child living to be twenty-one years of age arrives at that age, or for a shorter time, if he does not find it profitable. To that end all my capital and interest in said concern shall be continued