Cummins, 51 Ind. 478; Koenig v. Adams, 37 Kan, 52, 14 Pac. 439), and is not the rule in this state, either at law or in equity, unless it is made so by section 5475, Revised Codes, supra. This latter question will be hereafter examined.

Assuming, then, that the partnership was dissolved, and that defendant could dissolve it by simply expressing his will to that effect, the question remains: Does the complaint state facts sufficient to show that in so doing he committed an actionable wrong against the person or individual property of Freund? The general elementary rule is that law will not sustain suits between partners. (Parsons on Partnership, 4th ed., p. 269; Zimmerman v. Chambers, 79 Wis. 20, 47 N. W. 947.) But, says Professor Parsons (page 302): "So far as there are personal torts, they can hardly have any relation to the partnership, and neither party can be affected in right, obligation, or remedy by the fact that he is a partner. Of torts in relation to the partnership or its property, nearly all will be comprehended either in fraud or waste, for both of which the remedy in equity is prompt and efficacious."

Bearing in mind that one member of a partnership at will may dissolve the same at any time, reasonable or unreasonable, and in the exercise of either good or bad faith, let us examine the complaint in this action, in the light of the authorities, for the purpose of ascertaining whether the defendant committed any actionable wrong against the plaintiff, omitting from consideration, in so doing, section 5475 of the Revised Codes, supra. The following is a portion of the text found in 30 Cyc. 468: "For actionable wrongs to the person or to the individual property of one partner, inflicted by a copartner, an action at law will lie. Ordinarily, such an action will not lie for the sale and forcible removal of firm property, or for its use, in violation of the wishes of a copartner; but for the tortious destruction of firm property, for its detention and use under claim of sole ownership, for the wrongful ouster of a copartner from firm premises, or for the wrongful and secret appropriation of

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firm property to the use of one partner, the appropriate action. at law is maintainable."

The case principally relied upon by the appellant is Ball v. Britton, 58 Tex. 57. The complaint in that case alleged, in substance: That plaintiff and defendant entered into a copartnership for the purpose of erecting iceworks and manufacturing and selling ice, by the terms of which defendant was to furnish the money necessary to buy machinery and erect buildings, and plaintiff was to superintend the erection of the works and the operation thereof, the net profits to be equally divided between them. That plaintiff did superintend the construction of the iceworks, put the same in operation, and operate successfully for a few months, during which period the profits amounted to $3,000, and would have amounted to $4,000 during the season. That the works would have made clear each succeeding year $5,000. That after the expiration of a few months, by threats to take his life, by calling him a pauper, a liar, and a thief, and ordering a certain third person to knock his brains out if he attempted to superintend the business, defendant forcibly ejected plaintiff from the business and took possession of the same, and continued to hold it, appropriating the profits thereof to his own use, to appellant's damage in the sum of $10,000. Plaintiff afterward amended his complaint by increasing his claim for actual damages and demanding in addition thereto $5,000 vindictive damages. The court said: "Any member of a firm may withdraw from it and [thereby] work a dissolution of the firm. But that is not the state of facts which the petition sets forth. The defendant did not withdraw from the firm. He expelled the plaintiff out of it, and he not only retained all that he had put into it, but he kept all that had been contributed by the plaintiff, except a certain portion of the profits. It is difficult to see how one member of a firm consisting of only two can exclude the other. We think, therefore, the petition sets forth a good cause of action." The court continued: "We think the measure of damages is the value of the services rendered by plaintiff, including his skill,

his time, and labor in constructing and operating the factory, deducting whatever he may have received of the profits, if anything. This would be the measure of his actual damage. Counsel for defendant insist that plaintiff was not entitled to exemplary damages, and refer us to the case of Railroad Co. v. Shirley, 54 Tex. 125, to the effect that such damages are not recoverable upon a breach of contract. In the case before us there was a breach of contract, certainly; but there was much more. The plaintiff was with every circumstance of contumely excluded from a business in which he had an interest and from premises in which he had a right to work, at least for the time being. The defendant appears to have taken the law into his own hands and to have closed the partnership in a manner entirely too summary to be sanctioned by a court of justice." In that case there was no limit fixed for the duration of the arrangement between the parties.

In the case of Sewell v. Connor (Tex. App.), 23 S. W. 555, the alleged facts were these: The parties mutually agreed to start a newspaper, the defendant to contribute the necessary personal property, and the plaintiff to devote his time, skill, and labor to the operation of the business, and the net proceeds to be equally divided. The paper was established. Plaintiff obtained subscribers and built up a valuable advertising and jobwork business. Considerable stationery was purchased and was on hand when defendant evicted the plaintiff, took possession of all property of the firm, denied plaintiff any rights in the business, and advertised that he had discharged him. No time was fixed during which the partnership should continue. Plaintiff brought his action for services, skill, and labor furnished. and expended by him, at the rate of $100 per month from date of the original agreement, and $1,000 exemplary damages. The supreme court, on the authority of Ball v. Britton, supra, held that his complaint, containing the foregoing allegations, stated a good cause of action.

It will be observed that in both of these Texas cases the court proceeded upon the theory, apparently, that although the defend

ant had the undoubted right to terminate the partnership at any time, he might not do so in a summary manner. In both cases the court seems to have been of opinion that plaintiff could waive any benefits accruing to him under the partnership arrangement and all claims to partnership property, and sue for the reasonable value of the services performed, together with damages by way of punishment on account of the fact that the defendant had summarily discontinued the partnership relation before the plaintiff had derived any benefits therefrom. This is apparent in the first case, by reason of the fact that the court decided that the plaintiff should be charged with the amount of any profits received, and, in the second, by the fact that suit was brought for the value of the services. It is impossible to reconcile either of these cases with the common-law rule that the defendants could rightfully terminate the partnership at will and at any time, and in both cases the plaintiff was allowed to ignore the partnership agreement, by suing on a quantum meruit for his services, and at the same time claim vindictive damages for an alleged breach of that agreement.

In the case of Newsom v. Pitman, 98 Ala. 526, 12 South. 412, the plaintiff alleged: That he and defendant were copartners; that the defendant maliciously, wrongfully, and without probable cause sued out an attachment against the firm in his own name, and closed up the business; that the matters alleged in the affidavit for attachment were maliciously false; that defendant had no grounds to believe them to be true, and the attachment was made for the purpose of vexing, harassing, and injuring the plaintiff. The theory of the pleader appears to have been that the defendant was guilty of a malicious civil prosecution of the plaintiff. (See Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; McKeller v. Couch, 34 Ala. 336; Stewart v. Cole, 46 Ala. 646; 26 Cyc. 13.) The supreme court of Alabama said: "No attachment would lie at his [plaintiff's] suing against a firm of which he was a member. If the allegations of the complaint are true, the attachment was an illegal ard violent procedure of the defendant to accomplish a dissolution of the firm,

to oust one of the partners therefrom, and take possession of the property of the copartnership, without reference to the rights of the plaintiff in it and to his great damage, as alleged in the complaint. It ought not to have been done. The law gives a remedy for the wrong, and the plaintiff has not misconceived his action in the complaint he has filed." The report of the case does not inform us what was claimed by the plaintiff in the way of damages, and no cases are cited in the opinion. Indeed, the learned judge who wrote the same advances no reasons in support of his conclusions.

The only other case of importance cited by the appellant is that of Murray v. McGarigle, reported in 69 Wis. 483, 34 N. W. 522. In that case the plaintiff was permitted to maintain an action for damages against his copartner and a number of others for conspiracy to injure the business of Murray & McGarigle and drive the plaintiff out of the coal business conducted by the firm. That case is clearly distinguishable from the one at bar. The plaintiff alleged that by reason of the fraudulent conspiracy he was ruined and driven out of the coal business, and was obliged to and did quit and abandon the same, and was deprived of and lost his share of the profits upon any sales and contracts before made by him, and upon any sales and contracts which he might otherwise have made, and was greatly damaged in his reputation and business, to his damage in the sum of $10,000. Equity could afford no relief in such a case. The conspiracy itself had no connection with the business of the firm. Plaintiff sought relief against others than his partner, which relief could only be afforded in a court of law. The court said: "It may be true that this defendant [McGarigle] and the plaintiff were partners in matters affected by the conspiracy; but he is charged as one of the conspirators, which makes his blame greater and less excusable, and he is not interested in the damages. In such case partners may and should sever. If a third person colludes with one partner in a firm to injure the other partner or partners, the latter can sustain an action. The complaint states every fact