TMI Blog1926 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... any and shall practise as attorneys under the said name and firm. The partnership is to be for one year, and on its determination the defendant is to cease to have any claim or interest in the firm and its outstandings, the property, name and goodwill thereof. 3. Further, the plaintiff and defendant gave a general notice as follows : We beg to inform you that we have admitted Mr. Hormusji Bezonji Bamji (the defendant) into partnership with us from this date. We shall continue to carry on our business under the same style as before. Mr. Bamji will sign as below. 4. This was on July 1, 1915, Exh. 34. After that for several years the defendant was left in sole conduct of business, mainly because it appears that the plaintiff' w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, in the light of subsequent events. But it must be borne in mind that that original document was for one year only ; that no further document was executed : and presumably, therefore, the parties afterwards continued at will on the terms of Exh. A. If then it was originally a partnership, it became a partnership at will as from August 191C. So, too, I quite appreciate that the legal existence of a partnership has to be determined from all the facts. A statement in a document that nothing therein contained is to constitute the relationship of partners, will not necessarily prevent the parties from being partners in the eyes of the law. So, too, a mere statement that the parties are to be partners will not necessarily constitute them partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all that is to remain the property of the plaintiff. Further, upon the determination of the partnership the defendant was to cease to have any claim or interest in the firm and the outstandings, the property, name and goodwill thereof. That clause would seem to imply that up to that date he had an interest, although on the dissolution all those assets would pass to his partner. The final clause contains a provision for arbitration if during this partnership any dispute shall arise with reference to this agreement or partnership hereby created. The word or is in the original. Probably the sentence should run or the. But it is clear from this clause alone that the parties thought they were creating a partnership. 10. Now, as regards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the difficulties pointed out by the plaintiff disappear here, if the agreement had been drafted in this form, that out of the profits of the partnership the defendant should be paid a preferential ₹ 500 a month, but that if and in so far as the profits of the business should be insufficient to pay that sum, then the plaintiff would pay the deficiency to the defendant out of his own pocket? I do not think- any objection could have been taken to such an agreement, if it had been entered into, as not coming within the express words in Section 239. But, in my opinion, that is what the parties have substantially agreed on here when they said that in lieu of his share of profits the defendant was to get a particular fixed sum. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should enter into a formal agreement to become partners, and then so far as the outside world goes and so far as the correspondence between them goes, act as partners for some six years and give the usual notices of dissolution and yet be told at the end that they were entirely mistaken as to their true legal position, and that they did not know the elementary principles which go to constitute a partnership, although that was a matter on which they would be presumably advising their clients frequently. I am glad to think that I am not driven by Section 239 to adopt that conclusion, and, therefore, with great respect to the contrary opinion of the learned trial Judge, I would hold that issue No. 1 was wrongly answered in the Court below, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his fact the Chief Justice has already referred. 18. There is also the evidence which shows how the salary of the defendant was arrived at. It appears that in 1913-1914 the estimate of the amount drawn by the plaintiff was ₹ 1,000 a month, and on that estimate the defendant's salary was fixed at ₹ 500. Under the circumstances, that would be a very proper reason why the share of the profits of the firm should be compounded by appropriating under the agreement to the defendant ₹ 500 a month. The obvious advantage of any such arrangement would be that there would be no necessity for accounts of the partners being taken either at the end of the year, or when the partnership was dissolved, The trouble of drawing up a bal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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