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Deming agt. Chapman.
The defendant now insists that “ the art of making artificial marble” was the invention of a person of the name of Hardinge, in the state of Ohio; that Hardinge, in 1850, communicated the secret to one Williams, under a sworn stipulation, or affidavit, not to reveal it without Hardinge's consent; that Williams, on the 25th of February, 1852, violating his oath and agreement, communicated and sold the secret to Deming; and that Deming, therefore, deriving his own title, whatever it may be, through a violation of Williams's obligation to Hardinge, has no right either in law or equity, to demand the enforcement of Chapman's precisely similar obligation to him.
To meet the force of this answer-so direct and seemingly conclusive—the plaintiff alleges that the invention, as he purchased it of Williams, was "in an inefficient state, and nearly worthless.” But how is such a position to be reconciled with the admitted dates of the case. Williams swears that he imparted the secret to Deming on the 25th of February, 1852; and Deming, in his coinplaint, swears that his contract with Chapman was on the 4th of March, only one week after. How, in so short an interval, could “much time and money have been spent in bringing out and perfecting the art.” And yet Deming swears he made the alleged improvements. While on the other hand his witness, Williams, swears that the invention, as imparted by him to Deming, was entirely different from “the processes used by Hardinge," or, in other words, that he, Williams, imparted to Deming the improved invention, and of course that he, Williams, was the improver. But this is not, all: Chapman produces a written instrument, (sworn, like the two already referred to,) taken by Deming from three other employees, only one week before Chapman's, in which he speaks, or makes them speak of the invention as “the secret, art, mystery, invention, and discovery, imparted and made known” by Williams.
With this contradiction before me, and without the least in. timation of the particulars of the alleged improvement, I am bound, I think, to presume that the secret communicated to the defendant, Chapman, was substantially the same “art (as ex
Deming agt. Chapman.
pressed in the contract with Hardinge) of making artificial marble,” (not with merely painting with marble colors,) which Williams, if the doctrine of the plaintiff's complaint is good law, had no right to sell or reveal to Deming, and which Deming, therefore, had no right to sell or reveal to Chapman, or in any way to make the subject of a bill in equity. Hardinge, if any one, is the aggrieved party, and Deming, as much as Chapman, is the aggressor. Instead of Deming, therefore, filing a complaint against Chapman, Hardinge should file a complaint against both.
Is such a complaint, moreover, in any case sustainable? The patent laws provide that inventions shall be secured for a certain time, and in a certain manner. How, then, can the courts, in effect, secure an invention without a patent, and for a period of indefinite duration, instead of the limited time of fourteen years. Besides, the jurisdiction of securing, for limited times, to inventors, the exclusive right to their respective discoveries,” is confided by the constitution to the general government. Can the state tribunals, then, assume the same function after the general government has acted on the subject ? But how is a decree, if made, to be enforced? The plaintiff must allege that the defendant has revealed the prohibited secret—the defendant admitting that he has revealed something, denies that it is the thing inentioned in his agreementa question of identity arises for the court to determine; and how is the identity of two given things to be investigated, if we are not permitted to inquire what the given things are? But the moment the investigation takes place, the secret vanishesits exclusiveness is gone; and with the exclusiveness of the subject of the action, the action itself disappears. (See the cases of Newberry agt. James, 2 Merivale, 446, and Williams agt. Williams, 3 id. 160.) An injunction, therefore, (if any,) is not the appropriate remedy—it is obviously inefficient in practice and incapable of enforcement. An action for damages would seem to be the only redress in such cases.
Motion to continue the preliminary injunction denied, without costs.
Jacquin agt. Buisson.
HENRI JACQUIN, Collector, &c., agt. JOSEPH P. Buisson.
In an action, by an heir at law of a deceased partner, for a dissolution of the
co-partnership, an account, an injunction, and a receiver, where the articles of co-partnership, or association, were executed at Brussells, on the 8th April, 1853, in the French language, establishing a limited commercial partnership, for ten years, designated a collective partnership (en nom collectif)—the location to be in the city of New-York, a defence was interposed, by the surviving partner, that, under the articles of association, the partnership must remain in force for the unexpired period fixed for its duration. Held, that the rights and position of the parties were to be examined, and should
be considered as affected, both by our own law and by the law of France,
which applied to the contract, if any foreign law did so apply. The tenth article of the association was as follows: “ The decease of M. Jac
quin shall operate no dissolution of the co-partnership, and shall open no necessity for laying on the public seals, at the business place, nor of an inventory. His heirs and representatives will be considered as having succeeded him from the last inventory that may have preceded his demise; and they shall have three months, to date from such decease, for declaring whether they intend continuing the partnership upon the same basis, or transforming it into a
partnership en commandite." “ If they declare their intentions to be to transform the partnership, or, within
the time allowed them, they neglect making known their intentions, the partnership shall of full right be transformed into such a partnership en comman. dite in regard to them. Mr. Buisson shall thenceforth be the sole responsible manager, and it shall then continue upon the new basis, without any other
modification, up to the time fixed for its expiration.” It appeared that the partner Jacquin died in January, 1855, intestate, leaving a
widow and three children, of whom the plaintiff was one. There had never been any announcement, directly made by the heirs and representatives, of their election to proceed with the partnership en nom collectif, or as general partners. But the facts authorized the supposition of the concern proceeding
upon the other basis, viz., en commandite. Applying the law to such a case, Held, 1st. That no representative of an estate, or parties interested in it, can be
bound to become partners with a survivor, so as to make themselves person: ally responsible, or subject them to the duties of partners, without their consent. No articles of covenant or direction in a will can impose this personal
obligation upon them. 2d. But the party may, by articles or his will, direct the whole of his estate to
remain in the firm, and be liable to the debts incurred in the business carried Vol. XI.
Jacquin agt. Buisson.
on subsequent to his death. He must demonstrate such an intention in the most positive and unequivocal manner. 3d. A direction that the capital already in, or a given amount of it, should remain in the firm during a stated period, gives the acting partner the possession of the fund, and the right to use it. He can only be interfered with on grounds which will justify every partner to break up a partnership, before the
expiration of its limited continuance. When, therefore, a stipulation is in favor of a particular party, or of a represent
ative, he may refuse to act upon it, and the firm is dissolved. If there is a covenant, or a testamentary direction for the continuance or investment of capital, it will bind the estate. If the party avail himself of the stipulation, he will become personally bound; but otherwise the estate or fund will alone
remain liable. The partnership, en commandite, of the modern civil law, has, as its leading
and distinguishing elements, the exemption of the contributors to any personal responsibility for the debts, the subjection solely of the fund contributed by each to such liability; the general unlimited responsibility of the actor, (Le Gerant,) and the omission of any necessity to disclose the names of the contributors, (although the amount is published,) except in case of a failure; and
then only to reach the amount of their investment, The provision in the articles of partnership in this case, is perfectly lawful by
the law of the country where the contract was made; and under it the widow
and heirs continued partners, en commandite. But it is not to be questioned that a limited partnership, formed under our
statute, is dissolved by the death of one of the partners, as it is in ordinary
cases; that is, so far as the statute regulates it. A striking distinction between the principle of our statute and that of the French
law is, that by the former the names of the special partners must appear upon
the public record. Our statute has prescribed a system which will extend to provisions of this na
ture. The parties designated in articles or a will, to continue a partnership, or to be interested in it, after a death, should be obliged to renew the formalities of the statute, if they would remain special partners, with the fund alone responsible; and if they continue the business without this form, the they become general partners, liable in like manner as all other dormant
partners. The result in this case is, that there was a general partnership, which the rep
resentatives have not chosen to continue as such, and now seek to continue as a limited partnership, without pursuing the regulations of the statute,
It follows that a dissolution has taken place by the death of Jacquin.. The survivor has then a right to wind up the business, and can only be inter
fered with on the ground of unfaithfulness or insolvency.
At Chambers, New-York, September, 1855.
Jacquin agt. Buisson.
MR. SOUTHMAYD, for plaintiff.
HOFFMAN, Justice. The plaintiff sues as collector (administrator ad colligendum) of Joseph Julien Jacquin, who, in his lifetime, was a partner with the defendant, Buisson. He sets forth the formation of the partnership; the death of Jacquin, who was his father; the consequent dissolution; and seeks an account, an injunction, and receiver. Some other matters are stated in the complaint, which will be hereafter noticed.
The defendant resists the application, and the whole relief sought in the action, upon the ground that, under the articles of association, the partnership must remain in force for a number of years—the unexpired period fixed for its duration.
The articles were executed at Brussells, on the 8th of April, 1853, in the French language; and the first article established a commercial partnership between the parties, the location of which was to be in New York, and the object, the making and selling of liquors and sugar-plums. It was expressly designated a collective partnership-(en nom collectif;) and its duration is fixed for ten years from its institution.
The tenth article is as follows:
“The decease of M. Jacquin shall operate no dissolution of the co-partnership, and shall open no necessity for laying on the public seals, at the business place, nor of an inventory. His heirs and representatives will be considered as having succeeded hin from the last inventory that may have preceded his demise; and they shall have three months, to date from such decease, for declaring whether they intend continuing the partnership upon the same basis, or transforming it into a partnership en cominandite.
“If they declare their intentions to be to transform the partnership, or, within the time allowed them, they neglect making known their intentions, the partnership shall, of full right, be transformed into such a partnership, en commandite, in regard to them. 'Mr. Buisson shall thenceforth be the sole responsible