Page:Harvard Law Review Volume 8.djvu/327

311 ■ LEASE OF RAILROAD. 31I • By a contract signed by about fifty persons, in 1839, the sub- scribers agreed to become partners in a firm to be styled the " Farmers' and Mechanics' Store," and to pay the sums annexed to their respective names, as the capital to be used by the firm in carrying on a retail trade in domestic and foreign goods at Bath. The twelfth article of the contract provided that there should be " neither purchase nor sale of ardent spirits by the concern." The business forbidden by this article was allowed by an amendment to which two of the subscribers (the plaintiffs in the reported case) did not assent; and it was held that they were not bound by the altered articles of partnership.^ The plaintiffs did not pay the sums set against their names, and were discharged from liability by their rescission of the contract which the other parties had violated. If the violation had occurred after the plaintiffs contributed their shares of the capital, when mere rescission would not be a sufficient relief, they would have been entitled to an injunction against the purchase of spirituous liquor, or a dissolution of the firm and a division of its property, or some other complete redress. They could not be compelled either to be partners in the business pro- hibited by their contract or to sell their shares, but would have an adequate remedy in an appropriate suit. If the majority were dis- satisfied with the twelfth article, they could sell their shares ; but they could not put the plaintiffs to the alternative of submitting to the wrongful change of business, or withdrawing from the firm. Violations of the contract by the majority, before and after the plaintiffs paid their shares, would present different questions of pro- cedure. But a material and unauthorized change of the business after they invested their money in it, would be no less a violation of their legal right than a prior change ; and their legal remedy would be no less effectual in one case than in the other. The decision that the change of business was material and sub- stantial, and that no dissenting partner was bound by the alteration of the twelfth article, was an ascertainment and adjudication of the original intention of the parties. If the twelfth article had required ardent spirits to be kept for sale under the license law then in force,^ Hotel Co, 2 Drewry & Smale, 521, 524, 525, affirmed on appeal, 11 Jurist (N. S.) 551; Pickering v. Stephenson, L. R. 14 Eq. 322, 340; Ward v. G. J. Water Works, 2 R. & M. 470; Davis v. Old Colony R. R. Co., 131 Mass. 258, 259; Day v. S. S. B, Co., 57 Mich. 146, 150; Lucas v. W. L. T. Co., 70 Iowa, 541, 545, 546, 549, 550. 1 Abbott V. Johnson, 32 N. H. 9, 19, 20. 2 Pierce v. State, 13 N. H. 536, 538. 4*