PREC. XIV. shall be recorded in two books and in each thereof signed by both partners within calendar months after the end of such year and each partner shall retain one of the books and except where any manifest error shall be found therein within six calendar months after the signatures shall have been entered therein as aforesaid shall be bound by such accounts and valuation. Equal division of net profits subject to balance of purchasemoney out of C. D.'s share. C. D. liable 16. The net profits of the said business shall be divided equally between the partners subject as to the moiety therein of the said C. D. to the said charge in favour of the said A. B. 17. If the partnership shall be determined by the said C. D. by notice under Clause 4 the said C. D. shall be liable personally to pay to the said A. B. the said sum of £- -or such part thereof as shall then remain unpaid and the same shall together with interest thereon at the rate of 5 per cent. per annum from the date of purchase of such determination be a charge on the share of the said C. D. in the capital and profits of the partnership (h). personally to pay balance money if he determines partnership. If either die or become bankrupt before sealing of patent it shall lutely in A. B. or his repre vest abso sentatives. 18. If either partner shall before the letters patent shall be sealed die or become bankrupt or commit an act of bankruptcy whether available for adjudication or not the partnership shall thereupon determine and in that case the interest of the said C. D. or his representatives in the said invention letters patent and other patents or like instruments aforesaid or the right to obtain and hold the same respectively and all other (if any) inventions and patent or like rights then comprised herein and also the said implements and effects or other like implements and effects then belonging to the partnership shall enure for the benefit of the said A. B. or his representatives subject to the satisfaction of all liabilities (if any) of the partnership and of all lawful claims by or on behalf of the said C. D. or his representatives against the assets of the partnership or against the said A. B. or his representatives in respect of any moneys brought by the said C. D. into the partnership or otherwise and accordingly the said C. D. or his representatives shall at the request and cost of the said A. B. or his representatives execute and do all such assurances and things as may be necessary or convenient for vesting the entirety of the said inventions letters patent patents instruments and rights and also the said implements and effects respectively in the said A. B. or his representatives or his or their assigns as by him or them shall be reasonably required (i). (h) Should A. B. by misconduct try to force C. D. to dissolve, the latter should apply to the court for an injunction against the acts complained of. It is presumed that a judgment for dissolution in the action, even if prayed for by C. D., would not involve the infliction of the above personal penalty, as the dissolution would not have been effected by mere notice. In Fairthorne v. Weston (3 Hare, 387), one of two solicitors, partners, filed a bill for an account and a receiver, without praying for a dissolution. A demurrer as to the necessity of praying for a dissolution in order to obtain relief was overruled. (i) By Clause 8, C. D. is not obliged to bring in any moneys before the sealing of the patent, and, by Clause 7, he is not, before the sealing, to pay any sum for his share of the various patents. A. B., his executors or administrators, or his assignees in the bankruptcy (if so) should therefore, in PREC. XIV. purchase de patent if 19. If the dissolution of the partnership shall take place by reason of the death of either partner after the sealing of the said Option to letters patent but within two years from the date hereof the other partner shall (but if he shall be the said C. D. then subject to his ceased partsatisfaction of the said balance (if any) and interest thereon from ner's share of the time of such death) have the option to be exercised by him in death after writing within calendar months from the time of such sealing but death to purchase the interest of the deceased partner in the said within two inventions letters patent patents instruments and rights and also date hereof. the said implements and effects as then lately comprised in the partnership at the price of £. years from aforesaid sur assets. 20. Except and subject as herein before provided if either partner Subject as shall die in the first year of the partnership his executors or viving partner administrators shall only be entitled to the amount of capital may purchase brought in by him which shall or ought to be standing to his share of decredit in the partnership books and not to any further sum by ceased in the way of profits or otherwise except any sum or sums properly due to such deceased partner in respect of his monthly drawings as aforesaid which sum or sums shall be payable on demand but if either partner shall die in any subsequent year of the partnership his executors or administrators shall be entitled to his share in the partnership assets as they shall be found to have amounted to on the last previous yearly day hereinbefore appointed for taking a valuation of the said assets and also to such sum or sums (if any) as shall since such yearly day have been brought by the deceased partner into the partnership and also (in lieu of profits but subject to deductions as to all intermediate monthly drawings by the deceased partner as aforesaid) to interest up to the date of the death of the deceased partner at the rate of five per cent. per annum on the value of such share as from the same yearly day and also on such sum or sums (if any) last aforesaid as from the time or respective times when the same was or were so brought in which interest respectively shall be payable by the surviving partner on demand and the principal sum so found due to the estate of the deceased partner shall be payable by the surviving partner in six equal instalments at half-yearly intervals the first whereof being payable at or before the end of nine calendar months from the date of the death of the deceased partner and each instalment until payment thereof shall bear interest from the same date at the rate of five per cent. per annum and the surviving partner shall at his own expense if and when required by the said executors or administrators so to do enter into a bond or deed of covenant for payment of the said instalments and interest in manner aforesaid. [Arbitration Clause as in Form 24, ante, p. 55.] IN WITNESS, &c. (j). either of the above events, be entitled to the full benefit of the patents. It is to be supposed that little business will be done, or liability occurred by the firm, before the sealing. (j) A notification of this partnership, so far as it shows that the patents are to be worked by the patentees jointly, can be entered on the register. See ante, p. 24, and sects. 23 and 87 of the Act of 1883, App., post, pp. 313, 322. For a clause as to service of notices, use Sp. Cl. 51, post, p. 242. XV. PREC. XV. AGREEMENT appointing a SOLE AGENT for the SALE of PATENT ARTICLES in the Metropolis. E. F. to be as co AN AGREEMENT made &c. BETWEEN A. B. and C. D. of &c. Company 1. The said E. F. shall act as sole agent in the city of London sole agent for and the districts and places lying within a radius of twelve miles. from Charing Cross for the said firm for the sale of the said articles for the term of two years to be computed from the two years at least. Determina tion by notice by either party at end of two years or by the agent any succeeding half-year. - day of 18- and for such further period as hereinafter mentioned. 2. The agency may be determined by either party at the end of the said term of two years subject to his or their service on the other of them of calendar months' previous notice in writing for that purpose and if not so determined shall continue beyond that period and may be determined by the said E. F. at the end of any succeeding half-year or period of six calendar months subject to his service on the said firm of three calendar months at least previous notice in writing for that purpose and if not determined in either of the said modes shall continue so long as the said E. F. shall duly perform or observe his obligations hereunder. 3. The said firm having approved of the premises situate at &c. PREC. XV. in the city of London as being suitable for the said agency and which premises the said E. F. in view of this agreement has just mises taken Agency precontracted to take on lease the said agency shall be established at with approval the said premises accordingly and shall continue to be carried on of firm. thereat until the said E. F. shall with the written consent of the said firm engage other premises for such purpose. 4. The rent and taxes and the cost of all furniture books of Agency exaccount stationery and insurance of premises and the salaries of penses to be paid by agent clerks messengers and others and all other office and other necessary except as to or proper charges and expenses of and incidental to the said carriage of agency except those relating to the carriage of goods sent to him goods to him. by the said firm the charges and expenses for which they shall be solely liable shall be incurred and borne by the said E. F. alone. nated in front 5. The said E. F. shall place his own name with the addition Agency how of the words "Sole Agent in the Metropolis for A. B. and C. D.'s to be desig patent [name of article]" and no other name or statement in the of premises most conspicuous part of the front of the agency premises (the and on the words "A. B. and C. D.'s patent -" being painted in much stationery. larger type than the other name and words aforesaid) and shall also keep use and retain his own name with the addition aforesaid upon all invoices heads of account and the stationery generally of the said agency (a). 6. The said firm shall from time to time from and after the day of next supply to the said E. F. such articles aforesaid as he shall require not exceeding (unless the said firm shall be willing to supply any further quantity), in number per calendar month on an average of three calendar months and the said E. F. shall sell the same articles and those already supplied to him as aforesaid at the best prices he can obtain for the same but the said firm shall nevertheless be at liberty from time to time in variation of any provision in this respect herein contained to fix the minimum selling prices hereof or to prescribe either generally or in particular the cases in or the longest periods for which respectively credit may be given or refused as to the selling prices thereof (b). Monthly supPly by firm of the patent articles. 7. Credit shall not be given to any single person firm or Limitation of company for a longer period than calendar months nor for credit to cus (a) Such a provision will prevent the operation of the reputed ownership clause against the firm on the bankruptcy of the agent. See Bankruptcy Act, 1883, sect. 44, sub-sect. 2, par. 3 (46 & 47 Vict. c. 52); and Ex parte Bright, In re Smith, L. R. 10 Ch. D. 566 (C. A.). In that case the bankrupt firm (agents) had placed over their premises, and printed on their stationery, the words "Merchants and Manufacturers' Agents," and were to be paid as commission the surplus of the proceeds of goods sold above certain prices. They acted for various manufacturers. It was held by Jessel, M. R., and James and Bramwell, L.JJ., that the creditors had thereby notice of the agency sufficient to exclude the operation of the reputed ownership clause. (b) E. F. would not be a mere agent if he was at liberty to sell the articles at any price he pleased, and pay fixed sums only for them to his principals after the respective sales. ( (Ex parte White, In re Nevill, L. R. 6 Ch. 397 (Ct. App.); affirmed in House of Lords, nom. Towle v. White, 21 W. R. 465.) tomers. PREC. XV. any articles the selling prices whereof to any single person firm or company shall be beyond the total amount of £ No actions or proceedings without consent of firm. Commission to agent on sales. Agent to receive commission also by firm and ordered by persons in district. 8. The said E. F. shall not unless with the written consent of the said firm first obtained commence or prosecute in the name of the firm any action for the recovery of any moneys due to the agency for goods sold by the said E. F. nor compound nor release the said moneys or any part thereof but may at his own cost and risk commence or prosecute any such action (c). 9. The said firm shall as to all orders for purchase sent from any part of the world (including the said district) to the agency pay or allow to the said E. F. a commission of per cent. upon the prices received for the articles purchased but the said E. F. shall not without the written consent of the said firm procure or attempt to procure orders from any person or persons firm or company not residing or having offices within the said district. 10. Orders which shall be received by the said firm from any person or persons firms or companies residing or carrying on on goods sold business within the city of London or any of the districts and places aforesaid for the supply of the said articles may be executed by the said firm if they shall think fit after previous notice in writing shall have been given by them to the said E. F. who shall be entitled (but independently of such notice being given) to receive or be allowed in account a commission calculated upon the prices of the articles so sold as if the same were paid on the days of delivery or within thirty days thereafter respectively namely as to all such orders received up to the end of the year 18- a commission of per cent. and as to all such orders received after such date a commission of per cent. (d) or any such orders may be delegated to the said E. F. if he shall be able to execute the same but upon the same terms as to commission as if they had been given to him direct. Del credere commission. 11. As to all articles sold by the said E. F. other than in respect of orders delegated to him by the said firm as aforesaid the said E. F. shall guarantee to the said firm the payments by the purchasers of the respective prices thereof on the days of the delivery after the sale thereof or within thirty days thereafter respectively and in consideration of such guarantee shall be entitled to an extra (c) The agent may sue in his own name if he has a special property in the subject-matter of the contract, notwithstanding he contracted for an avowed principal. (Williams v. Millington, 1 Hen. Blacks. 81, the case of an auctioneer.) The factor and owner may each have actions on a contract. (Ibid.) (d) A higher percentage than the last-mentioned one. These commissions (so called) are, of course, by way of compensation to the agent for the firm dealing with purchasers in the district of the agency, and should, it is presumed, be little lower than the commission the agent would get if the orders were given direct to him. The change in the percentage after a given date is to be supposed to be owing to the circumstance that the firm have already customers in the district, and will in time, as far as possible, withdraw personally from supplying them with the articles. |