L. JJ. 1874 sold, nor can it be valued. There was nothing personal in the matter, and R. W. Kennard would not have gone to Egypt to MCCLEAN superintend. Of course we have no right to any new business undertaken by R. W. Kennard's partners, but his executors have a right to a share of the profits of all the old business. v. KENNARD. The agreement merely arranged the details, but it was quite proper to be made, and the others are bound by it, though J. P. Kennard was not a party. Even if the blank was never filled up, and the executors were not named, still when the executors signed the agreement it would be valid. Mr. Lindley, Q.C., and Mr. Cookson, for the Plaintiffs :- sonal representatives, it is unnecessary to inquire into, but as one other person was then unquestionably a trustee of the settlement, I think that the Plaintiffs and the other parties to the agreement of May ought to have been informed of it; although this is a matter of very small, if any, importance. The Defendants insist that the only object of the Plaintiffs was to secure the testator's representatives, whoever they might be, as parties to the agreement; and they support this contention by the assertion I have alluded to, that Howard John Kennard informed one of the Plaintiffs that John Peirse Kennard did not intend to act, and that he informed Sir William Drake that John Peirse Kennard intended to disclaim and retire from the trusts. If these facts had been more clearly established than I think they are by the evidence, I do not think they would fix upon the Plaintiffs the obligation of performing, with the Defendants Howard John Kennard and Edward Kennard, that contract which they had intended to enter into with those two persons and John Peirse Kennard, and that John Peirse Kennard had not conclusively determined in May to do that which he had not made up his mind to do until the month of June following, is, I think, clear from the statements of the Defendant Greenfield. I find, therefore, a total absence of that consensus which is the essential and indispensable element in every agreement, and, considering the nature and effect of the intended agreement, and of the subject to which it relates, I think the Plaintiffs are entitled to call for the present decision of the Court as to its validity, in order to prevent the inconvenient results which might ensue if it were left in doubt. I must, therefore, declare that the written documents or agreements of the 20th of May, 1870, are not binding as between the Plaintiffs and the Defendant Greenfield, on the one side, and the Defendants Howard John Kennard and Edward Kennard, on the other. The usual accounts will be directed up to the time of R. W. Kennard's death, and a valuation must be made of his interest under the contract at the time of his death. with the surviving contractors. The contract was joint, and before the works had been begun one of the partners died. His estate was therefore relieved from liability, and also lost all right to any profits. A joint contract is not like a joint debt. How is the capital to be found? Can these executors say that the other contractors are to find capital and give a share of the profits? The four survivors might be driven to file a bill in an administration suit, in order to get capital from the executors. When a partner dies, the partnership, in the absence of special provisions, is dissolved; and there are two ways of winding up the concern-one is selling, the other is having the interest of the deceased partner ascertained by valuation: Ambler v. Bolton (1). Then as to the agreement. We say that we were willing to admit the executors of R. W. Kennard to share, but then we understood that J. P. Kennard would be a party, as he was a rich man in whom we had confidence; otherwise we should not have made the agreement. There is nothing to limit the liability of the executors to the estate of their testator, and they are personally liable. We did not intend to admit anybody who might happen to be an executor. We intended to have an agreement with three people, not with two. If a contrary construction is put on the agreement, we have a right to set it aside on the ground of surprise. Mr. Creed, for W. B. Greenfield, took no part in the argument. SIR W. M. JAMES, L.J.: I really am unable to concur in the decision of the Vice-Chancellor. It appears to me, first of all, that the testator being at the time of his death a contractor, his estate became in equity (whatever it was at law) a co-contractor in the business. The result is, that unless there are some circumstances to induce the Court of Equity, on some particular equitable ground, to interfere with the ordinary consequences of such a contract, the executors became entitled to share in the profits of the contract, if there were any profits, and became liable to share the losses arising out of the contract, if there were losses, and that the executors are entitled (1) Law Rep. 14 Eq. 427. L. JJ. 1874 MCCLEAN V. KENNARD. L. JJ. 1874 to have the claims and liabilities ascertained in the only mode in which they can be ascertained-that is to say, by having the conMCCLEAN tract completed, and seeing, at the end of the contract, what is the result as to profit or loss. V. KENNARD. I really cannot distinguish this case, either in principle or in its circumstances, from the case, which was suggested during the argument by the Lord Justice, of four persons engaged in a contract for the purchase of a cargo of cotton, or of any other commodity, which had not been wholly delivered at the time of the death of one of them; and surely in such a case the transaction would have to be completed, and the profit or loss upon it would then be received or paid by the executors. That being our opinion, it may not be very material to determine the other point as to the agreement; but still I think it right to do so; and when we read it, and know the circumstances under which it was made, I cannot really bring myself to entertain a doubt that it was an agreement between the then surviving contractors and the persons, whoever they were, who represented the co-contractor who was dead. It is beyond all question that at that time his will was not proved, and it is beyond all question that it was not even ascertained what trustees had accepted or would accept, or what executors had proved, or would prove, or would survive to prove. Then under that state of things the agreement was prepared. [His Lordship then read the recitals of the agreement.] The agreement recites that "the parties hereto are jointly interested as co-contractors." And who are the parties of whom alone it could be averred that they were co-contractors, or jointly interested? Why, the representatives of the deceased testator. It was not any person named as trustee or executor in the will who would have anything to do with it, because, for example, an executor who did not prove or accept the trust never could have been meant to be described as a person jointly interested with the other contractors. Then the agreement is that the contract is to be carried out on the joint account of the co-contractors, and in the best interests of all concerned in the contract. All the co-contractors are to contribute in equal shares towards the expenses of carrying it out-that is to say, the contract is to be carried out on the joint account of the surviving contractors, and of the estate of the deceased co-contractor, in the best interests of all concerned in the contract. The individual persons named as executors and named as trustees would have no personal interest whatever in the contract, and would have no reason whatever to say anything to it. Then who are the persons who are to contribute? The contractors are to contribute in equal shares. It does not mean that the seven persons are to contribute in equal shares, but that the four and the estate are to contribute in equal shares, the estate being one of the co-contractors. The agreement then provides that, for the convenience of the others, the executors and trustees of the will are only to be sleeping partners-that is to say, the estate is to be a sleeping partner, and no one of the executors is to have a right to actively intervene in the execution of the works, but will simply have an interest in the profits or a liability in respect of losses. Then we have the provision as to the death of another of the co-contractors. His personal representatives would not be partners who were selecred by reason of their fitness or personal responsibility, but would be there simply in the character of personal representatives. There is the further provision that "the agreement is to be binding as between themselves upon the parties whose signatures are hereto annexed "—they were all ascertained, and were all ready to sign—and it is to be binding “upon the executors and trustees of Robert William Kennard as soon as they have signed" it-that is to say, it is to be binding on the persons who, at the time of the signature, would be the executors and trustees of Robert William Kennard. I am of opinion that, if the agreement was signed by the persons who were intended to sign, it thereupon became binding on all the other partners. I must say I think that a great deal of time has been occupied in pressing on us matter which, in my opinion, is utterly inadmissible as evidence. What the intentions of the Plaintiffs were, what they thought or believed, or what conversations took place, seem to me to be utterly inadmissible when once we have got a written document, and have got the facts which were existing at the time when that written document was entered into; and it would be utterly unsafe in the dealings of mankind if any one could be relieved from the effects of a document which he has signed by saying that he had received some information that some VOL. IX. 2 F 1 L. JJ. 1874 MCCLEAN v. KENNARD. L. JJ. 1874 body else would have been bound by it, and that that was the great inducement to enter into the contract. The whole of that evidence MCCLEAN is, in my mind, legally inadmissible, and even if admissible, seems to me to have not the slightest weight whatever. v. KENNARD. I am of opinion, therefore, that the decree of the Vice-Chancellor ought to be reversed, that is to say, we must declare the agreement to be valid and binding, and declare that the estate of Robert William Kennard is entitled to share in the profits and benefits of the contract, and is also liable for the losses arising therefrom; and that the Plaintiffs must pay the costs of the suit, except of course those of the appeal. SIR G. MELLISH, L.J.: I am of the same opinion. The testator, Robert William Kennard, and four other persons, signed a contract with the Government of Egypt to build a harbour at Alexandria. Some slight proceedings had taken place towards carrying out the contract, and in that position Robert William Kennard died. Now the first question is, what was the effect of his death? I am of opinion that though it is quite true that at law the right to bring an action on the contract, and the liability to be sued on the contract, was in the survivors, yet it is quite clear that even at law, and much more in equity, the benefit of the contract and the liability under the contract, as between the executors of the deceased partner and the surviving partners, continued notwithstanding the death of Robert William Kennard. Mr. Justice Williams says (1): "The general rule is, that the interest which the testator had in a chose in action jointly with another shall not pass to his executor, yet per legem mercatoriam, as formerly mentioned, an exception was established in favour of merchants, which has been extended to all traders and persons engaged in joint undertakings in the nature of trade. But in these cases, although the right of the deceased partner devolves on his executor, it is now fully settled that the remedy survives to his companion, who alone must enforce the right by action, and will be liable, on recovery, to account to the executor or administrator (1) Williams on Executors, 6th Ed. p. 789. |