Power of attorney. and in all and singular the goods, wares, stock in trade, credits, and effects belonging, due, and owing to them the said [A. B.] and Habendum. [C. D.], as partners aforesaid: To HAVE, RECEIVE, AND TAKE the same moiety, and other the premises hereby assigned, unto the said [C. D.], his executors, administrators, and assigns, absolutely; And for the consideration aforesaid, and for the more effectually enabling the said [C. D.], his executors, administrators, and assigns, to receive and recover the said several credits and effects of the said partnership, he the said [A. B.] hereby irrevocably appoints the said [C. D.], his executors or administrators, his lawful attorney and attorneys, in the joint names of the said [A. B.] and [C. D.], or otherwise, but for the exclusive benefit, and at the cost and risk of the said [C. D.], his executors or administrators, to demand, call in, and receive from all persons whom it may concern, all and singular the credits, moneys, and effects of the said partnership, and to give effectual receipts and discharges for the same respectively, and to use all such remedies or proceedings for recovering and getting in the said credits and effects respectively as may be deemed expedient; and for all or any of the purposes aforesaid, from time to time to appoint a substitute or substitutes, and such substitution at pleasure to revoke and generally to do whatsoever shall be requisite for giving to the said [C. D.], his executors or administrators, the full benefit of the assignment hereby made1: AND the said [A. B.] hereby cove partner that nants with the said [C. D.] in manner following (that is to say), that contracted he the said [A. B.] has not at any time heretofore contracted any debts, &c. debt or obligation which can or may charge or affect the said [C. D.], his executors or administrators, or the assets or effects of the said partnership, or any part thereof; nor received or discharged any of the credits of the said partnership, except as appears by the books Nor incum of the said partnership; nor done any act whereby the share and bered. premises hereby assigned, or any part thereof, may be charged or For further incumbered in any manner howsoever; And that he the said [A. B.], Covenant by retiring he has not assurance. Not to receive or release debts. his executors or administrators, will at all times hereafter, on the request and at the costs of the said [C. D.], his executors, administrators, or assigns, make, do, and execute every such further assurance, act, or thing whatsoever, for the more effectually vesting in the said [C. D.], his executors, administrators, or assigns, the premises hereby assigned, and every part thereof, and enabling him and them to receive the same, as shall be reasonably required; And that he the said [A. B.], his executors or administrators, will not at any time hereafter receive, compound, or discharge any of the goods, credits, or effects, one moiety whereof is intended to be hereby assigned, and will not release, disavow, or become nonsuit in any 1 Where the retiring partner assigns his share, it may frequently be advisable to insert a power of attorney, notwithstanding that an assignment of a debt, of which notice in writing has been given to the debtor, passes the right to the debt, and all remedies, and power to give a discharge for the same, without the concurrence of the assignor; for it may prove in some cases difficult to give the required notice: see sec. 25 (6) of the Judicature Act, 1873 (36 & 37 Vict. c. 66). by continu to pay for indem nity. 547 action or proceeding which may be brought by the said [C. D.], his executors or administrators, by virtue of the said power, or do any other act or thing in derogation of the assignment hereby made, or Covenants the powers or authorities hereby given; AND the said [C. D.] hereby ing partner covenants with the said [A. B.] that he the said [C. D.], his heirs, debts, and executors, or administrators, will, within calendar months from the date hereof, pay and discharge all the debts and liabilities of the said partnership; and will at all times hereafter effectually keep indemnified the said [A. B.], his heirs, executors, and administrators, and his and their estate and effects, against all actions, proceedings, costs, damages, expenses, claims, and demands in respect thereof, and also against all costs, damages, and expenses by reason of any action or proceeding which may be brought or instituted by the said [C. D.], his executors or administrators, in the name or names of the said [A. B.] his executors or administrators, by virtue of the power or authority herein before contained, or of any act, matter, or thing in relation thereto; AND in consideration of the premises, he the said [A. B.], hereby covenants with the said [C. D.], that he the said [A. B.] will not at any time within years from the date of these presents, either alone or jointly with or as agent or manager for any person or persons whomsoever, either directly or indirectly, exercise, carry on, or be concerned or interested in the trade or business of thereof, within the distance of and will not nor shall divulge or make known to any person or persons whomsoever any of the secrets, accounts, or transactions of or relating to or concerning the said partnership so heretofore carried on between them the said [A. B.] and [C. D.] as aforesaid; And if the said [A. B.] shall do any act in breach of this present covenant, then that he the said [A. B.] shall immediately thereupon pay to the said [C. D.], his executors or administrators, the sum of £ Covenant by [A. B.] not to exercise the trade, or disclose secrets. miles from or any branch aforesaid; as liquidated damages, and in total extinction of the same covenant.1 IN WITNESS, &c. 1 Where a person purchases a share in or the entirety of a business, from a retiring partner or any other person, it is important that the extent of the obligation, if any, intended to be imposed upon the vendor not to exercise the business, should be explicitly defined, as the point occasions much dispute, and it is by no means well settled how far such an obligation is incident to the contract itself. Where it is intended that the vendor of the goodwill of a business shall not be restrained from carrying it on, it is better expressly to negative the implication of any such restriction by such a clause as the following: "PROVIDED ALWAYS, and it is hereby declared, that nothing herein contained shall extend or be construed to extend to prevent or restrain the said [vendor] from setting up or exercising the trade or business of a at any place or places, and in any manner that he shall think proper." Parties. Recitals: of partnership under articles: of nature of partnership property: of agreement for and assign ment of share of retiring partner to continuing partners. XIX. DEED OF DISSOLUTION OF PARTNERSHIP between THREE, where one Partner retires and receives a Sum of Money (secured by the Promissory Notes of the Continuing Partners) in Lieu of his Share-Assignment of Share-Variation where Leaseholds are Assigned by a Separate Deed.1 THIS INDENTURE 2 made the day of 19 BETWEEN [A. B.], of, &c., of the one part; and [C. D.], of, &c., and day of day 19, whereby they are interested in the partnership property in equal shares: AND WHEREAS the said parties hereto are possessed, as part of the partnership property of the several leasehold properties specified in the Schedule hereunder written and of certain fixed and movable machinery, fixtures, and plant; and the partnership property also includes the moneys, stock in trade, materials, goodwill and effects used in or belonging to, and of debts owing to the parties hereto, as such partners as aforesaid; AND WHEREAS the said parties hereto have agreed to dissolve the dissolution said partnership, so far as relates to the said [A. B.], as from the next, and notice of such dissolution has been signed by them respectively in order to its being inserted in the London Gazette; and it has been agreed that the said trade or business shall as from and after that day be carried on by the said [C. D.] and [E. F.] in partnership without the said [A. B.]; and that they shall have for their own use and benefit all the third equal part or share and interest of the said [A. B.] of and in the said business and the partnership property aforesaid; and that they the said [C. D.] and [E. F.] shall take upon themselves all the debts and liabilities of the partnership which were outstanding on the said day of 19, and shall pay to the said [A. B.] the net value of his share as it stood on that day: AND WHEREAS a general account and valuation have been taken and made of the property, assets, and goodwill, and liabilities of the partnership, whereby it appears that the net value of the share of the said [A. B.], as it stood on that day, after providing for the liabilities of the partnership then outstanding is of the sum of £ and it has been agreed that the payment thereof by such instalments as are hereinafter mentioned shall be secured by the promissory notes of the said [C. D.] and [E. F.] in manner hereinafter appearing; and that thereupon the said [A. B.] shall assign to the said [C. D.] and [E. F.] all the share and interest of him the said [A. B.] of and in the property, assets, and goodwill 1 It will generally be advisable that where part of the property of a partnership consists of lands or buildings the share of a retiring or deceased partner in such property should be conveyed or assigned by a separate deed, so as to keep the fact that it is partnership property off the title. 2 As to stamp, see ante, p. 544, note 1. E of appor tionment of partner's share for stamp ment for Testatum. ship. of the partnership: [AND WHEREAS for the purposes of the Stamp shall be appor part thereof shall be taken to be day of the value of the share of the said [A. B.] in the said leasehold premises, and that the sum of £ the residue of the said sum of £ shall be taken to be the value of the share of the said [A. B.] in indemnity. the residue of the partnership property, assets, and goodwill]. AND WHEREAS the said [C. D.] and [E. F.] have also agreed to indemnify the said [A. B.] against the debts and liabilities due or owing from the partnership in manner hereinafter mentioned : NOW THIS INDENTURE WITNESSETH, that, in pursuance Dissolution and part performance of the herein before recited agreements, and of partner in consideration of the premises, they the said parties hereto hereby declare that the said partnership between them shall be determined and stand dissolved as from the said 19 and that the same and the hereinbefore mentioned articles of partnership and every clause and thing therein contained shall henceforth cease and be void. AND THIS INDENTURE ALSO WITNESSETH, that, in pursuance and further performance of the herein before mentioned agreements, and in consideration of the sum of £ [being the apportioned part of the said sum so agreed to be paid to the said [A. B.] for or in promissory respect of the property (other than the said leasehold premises), assets, and goodwill of the said business 2] to the said [A. B.] now paid, or to the satisfaction of the said [A. B.] secured to be paid to him by the said [C. D.] and [E. F.] by three several promissory notes, under their hands, and respectively bearing even dates with the partner- these presents, for the payment of the sum of £ property. (making together the said aggregate sum of £ Second testatum. In con- of certain notes given by the continuing partners, the retiring partner assigns to them his share in ship of £ each ), the first of such promissory notes becoming due at the expiration of two calendar months, the second at the expiration of four calendar months, and the third at the expiration of six calendar months next after the date of these presents (the receipt of which three several promissory notes the said [A. B.] hereby acknowledges), he the said [A. B.] assigns and transfers unto the said [C. D.] and [E. F.], their executors, administrators, and assigns, ALL THAT the one equal undivided third part or share, and all other the part, share, and interest of him the said [A. B.], of and in all [and singular the several leasehold premises specified in the said Schedule hereunder written, and of, and in all ] the fixed and movable engines and machinery, plant, moneys, stock in trade, contracts, goodwill, profits, effects, property, matters, and things of the said partnership, or of them the said parties hereto, by virtue thereof, and also of and in all and every such credits and sums of money 1 This recital will be inserted where it is intended to assign the leaseholds by a separate deed. 2 These words in brackets will, of course, be inserted only where the leaseholds are to be assigned by a separate deed. 3 These words in brackets will, of course, be omitted if the leaseholds are to be assigned by a separate deed. Power of attorney. several partners debts of, the partnership. as are now outstanding, due, or owing to them the said parties Habendum. hereto on account of their said partnership: To HAVE, RECEIVE AND TAKE the premises hereby assigned unto the said [C. D.] and [E. F.], their executors, administrators, and assigns, for their own absolute use and benefit; absolutely discharged from any lien or claim in respect of the three several promissory notes hereinbefore mentioned, or any of them; AND for the consideration aforesaid, &c. [power of attorney, ut ante, p. 546, mutatis mutandis]: Covenants AND the said [A. B.] hereby covenants with the said [C. D.] and bartering E. F.] in manner following, that is to say [Covenants by retiring partner that he has not contracted any debts, nor incumbered his share; for further assurance; and not to receive or release debts, &c., ut ante, Joint and p. 546, mutatis mutandis]; AND in further pursuance and per Covenant by formance of the hereinbefore recited agreement, and in consideracontinuing tion of the premises, they, the said [C. D.] and [E. F.], do hereby to pay the jointly and severally covenant with the said [A. B.], that they the said [C. D.] and [E. F.], or one of them, or the heirs, executors, or administrators of them or one of them will, &c. [Covenants by continuing partners to pay and discharge the partnership debts and liabilities, "including the rents and covenants to be paid, observed, and performed respectively in respect of the said leasehold premises," and to indemnify the retiring partner therefrom, ut ante, p. 547, mutatis mutandis]. AND THIS INDENTURE LASTLY WITNESSETH, that in further pursuance and performance of the hereinbefore recited agreement, and in consideration of the premises, each of them the said [C. D.] and [E. F.], hereby releases and discharges the said [A. B.], his heirs, executors, administrators, and assigns; and he the said [A. B.] hereby releases and discharges the said [C. D.] and [E. F.], and each of them, and the heirs, executors, administrators, and assigns of them, and of each of them (but subject and without prejudice to the covenants contained in these presents), from all actions, proceedings, claims, and demands, which they the said releasing parties respectively, or either of them, or their or his executors or administrators, now have or has, or hereafter have, against the others or other of them, their or his executors or administrators, by reason of the above-recited partnership, or any other matter or thing relating thereto. IN WITNESS, &c. Third testatum. Mutual release. THE SCHEDULE ABOVE REFERRED TO. |