Page:Harvard Law Review Volume 8.djvu/328

312 312 HARVARD LAW REVIEW. the contract would have been materially altered by a prohibitory amendment made by a majority of the firm; and a partner not assenting to such an amendment would not be bound by it. It might cut off the only branch of their trade in which he took any interest. His object might be a share of profit; and he might be of opinion that, at that time and place, without ardent spirits, there would be no profit. If the change were made before he paid his share of the capital, he could rescind his contract : if it were made after payment, he would have ample remedy by process of law adapted to the situation. Such an alteration of the twelfth arti- cle, or any other part of the agreement, as would not change its meaning, or affect any right or obligation of any contracting party, would be immaterial.^ Authorizing a large majority or a small minority to conform the business to a material alteration made by them in the contract, is not legislation ; and on the question of the validity of the alteration, it is not material whether the partnership is incorporated or not ; in either case the contract of fifty partners binds forty-nine of them as firmly as it binds one ; and the con- tract of the fifty, that could be made only by the non-legislative power of all the contracting parties, can be materially altered only by the non-legislative power of all who are parties at the time of alteration. " The majority of the Farmers' and Mechanics' Store may alter the twelfth article of the partnership contract by accepting and exercising the power hereby given to that unincor- porated company to sell ardent spirits ; and the majority of the Northern Railroad may alter the partnership contract by accepting and exercising the power hereby given to that incorporated com- pany to lease their road for ninety-nine years." A statute in that form would not decide the judicial question of the materiality of the alteration of contract and business, but would present the question whether the twelfth article is performed by selling ardent spirits, and whether the partnership agreement of all the Northern company to carry on the business of transporting passengers and freight on their road is performed by a performance of the ma- jority's subsequent agreement not to carry on that business from 1884 to 1983. The immateriality of the mere incorporation of the partners, on the question of the power of the majority in this case, is settled in 1 Smith V. Crooker, 5 Mass. 538, 540; Martendale v. Follet, i N. H. 95-97; P. Bridge v. Mathes, 8 N. H. 139, 141 ; Burnliam v. Ayer, 35 N. H. 351, 354; Cole v. Hills, 44 N. H. 227, 232,