Lincoln v. Orthwein

Citations

• 120 F. 880
• 57 C.C.A. 540
• 1903 U.S. App. LEXIS 4548

Syllabus

<p>1. Partnership — Dissolution—Death of Partner.</p> <p>A partner may provide by his will that the partnership shall continue after his death, and, if assented to by the other partners, such provision becomes effective, and the partnership is not dissolved by his death, nor are contracts previously made, and depending on the continuance of the partnership, terminated thereby.</p> <p>2. Same — Continuance after Death of Partner — Effect on Outstanding Contract for Services.</p> <p>Plaintiff entered into a written contract with a partnership for the stevedoring of all the vessels owned or controlled by the partnership at the port of New Orleans for 12 months beginning October 1st at prices therein fixed, the work to be done in a first-class manner. After the contract had been entered upon, one of the partners died, but left a will directing his executors (who were his sons and copartners) to continue the partnership until July 1st following his death, which they did. Both parties to the contract continued to recognize and perform the same until about June 1st, when it was terminated by the surviving partners. Eeld, that the contract was not terminated by the death of the deceased partner, and that plaintiff could maintain an action for its breach by its termination before July 1st.</p> <p>8. Contract — Action for Breach — Issues for Jury.</p> <p>In an action for the breach of such contract the only defenses alleged in the answer were that plaintiff did not perform the contract on his part in accordance with its terms and a denial of any damage to him resulting from its termination. Eeld, that under the pleadings the question whether the defendants were justified in terminating the contract, depended upon the determination of the issue as to performance by plaintiff, which was one of fact for the jury.</p> <p>4. Same — Damages—Evidence.</p> <p>Defendants, who, by wrongfully terminating a contract by which plaintiff was to have the stevedoring of certain ships during a