therefor impliedly stipulated to continue until the completion of the undertaking, cannot be dissolved at the mere pleasure of one of the partners.191 It is true that it may be practically terminated by the voluntary act of one of the partners in withdrawing from it, in refusing to continue with it, or in carrying on the business as his own to the exclusion of his partners. But this is more properly a breach of the contract than a rescission of it, inasmuch as the withdrawing partner remains liable in damages to his copartners for whatever loss or injury they may have sustained in consequence of his act.192 And the damages may include anticipated profits for the residue of the term fixed by the partnership articles.193 Of course a partnership for a fixed period of time may be dissolved by the mutual consent of all the partners. But where one member of a firm gives notice to his partner that all connection between them is dissolved, but this is not assented to by the partner, and the parties do not afterwards act upon it, this does not operate as a dissolution of the firm.194 A partnership agreement may also give to either partner the right to terminate it on giving a certain number of days' written notice, and when this right is exercised in good faith by one partner, the other cannot claim any damages for the dissolution of the firm.195

But even if an agreement of partnership is not dissoluble at will or on notice, it is still within the power and jurisdiction of a court of equity to set it aside or terminate it for good and sufficient cause, relating either to the circumstances in which it had its inception or to the subsequent conduct of a partner, just as it may order the rescission or cancellation of any other kind of agreement.196 On this point it has been said: "Where there is fraud, imposition, misrepresentation, or oppression in the original agreement for the partnership, a court of equity has juris

191 McMahon v. McClernan, 10 W. Va. 419.

192 Eagle v. Bucher, 6 Ohio St. 295, 67 Am. Dec. 342.

193 Bagley v. Smith, 10 N. Y. 489, 61 Am, Dec. 756.

194 Sanderson v. Milton Stage Co., 18 Vt. 107.

195 Swift v. Ward, 80 Iowa, 700, 45 N. W. 1044, 11 L. R. A. 302. 196 Durbin v. Barber, 14 Ohio, 311.

diction to decree its dissolution during the term for which it was originally entered into, and to declare it void ab initio. A court of equity may also decree a dissolution of the partnership for causes arising subsequent to the formation of the contract, founded upon the misconduct or fraud or violation of duty of one partner, or on account of the inability or incapacity of one partner to perform his obligations and duties, and to contribute his skill, labor, and diligence in the promotion and accomplishment of the objects of the partnership, or for the existence of an impracticability in carrying on the undertaking for which the partnership was formed." 197 And in another case it was said: "A partner is under no obligation to continue a member of a partnership when his copartner persistently and willfully violates the essential conditions upon which the contract of partnership rests. He is not under the necessity of remaining in the firm, and resorting to his action at law upon the partnership contract for redress. He is at liberty to withdraw himself and his capital from the concern whenever it becomes reasonably certain that the business can no longer be carried on at a profit, whether through the misconduct of his copartner or from a failure of the business itself. So, if he has been induced to enter into the partnership contract through the deceit of his copartner, he may withdraw whenever the fraud practised upon him becomes known. In neither case is he required to continue in the firm until the partnership expires by limitation of time, but is at liberty at once to ask for a dissolution and a winding up of the affairs of the partnership." And if a court of equity finds that a contract of partnership was void in its inception, on account of the fraud of one partner in inducing the other to enter into the partnership, it may award as damages that the fraudulent partner shall pay back to the other all sums of money which the latter has paid into the firm as his portion of the capital stock, and pay him a reasonable compensation for the time he has acted as a partner, and indemnify him against all lia

197 Fogg v. Johnston, 27 Ala. 432, 62 Am. Dec. 771. 198 Rosenstein v. Burns (C. C.) 41 Fed. 841.

" 198

bility arising out of the business in which they have been engaged.199

A contract of partnership between an infant and an adult is voidable at the election of the infant, who may disaffirm it if he so chooses, for no other reason than his minority, but if he elects to abide by it, the adult is bound and cannot rescind the contract. 200 A partnership will likewise be dissolved by the adjudication in bankruptcy of one of its members, and the assignee or trustee in bankruptcy thereupon becomes a joint owner or tenant in common with the solvent partners of the property of the firm.201

§ 344. Contract or Engagement to Marry.-A mutual promise or engagement of marriage, between persons who are legally capable of entering into the marital relation with each other, creates a binding executory contract, provided both give to it their free and intelligent consent, and provided it embodies the serious purpose of both parties; for a promise of marriage given merely in jest, or in the course of a theatrical performance, or as a mere repetition of words in the course of instruction in a foreign language, is not binding. 202 This contract is subject to rescission for the same causes and in the same circumstances as any ordinary contract. For instance, false representations made by a woman on entering into an engagement of marriage, or made by a third person on her behalf and with her knowledge, with knowledge of their falsity, for the purpose of deceiving the man and inducing him to promise to, marry her, he believing them to be true, are cause for his rescission or repudiation of the promise (and vice versa, of course), provided they relate to material matters, such as would have influenced him had he known the truth, as, for example, matters relating to the person's wealth, income, business position, family connections, position in

199 Richards v. Todd, 127 Mass. 167.

200 Latrobe v. Dietrich, 114 Md. 8, 78 Atl. 983. And see, supra, § 289.

201 McNutt v. King, 59 Ala. 597; Wilkins v. Davis, 2 Low. 511, Fed. Cas. No. 17,664.

2021 Wharton, Contr. § 175; McClurg v. Terry, 21 N. J. Eq. 225.

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society, or previous good character.208 Thus, in an English case, a man was held justified in breaking his promise to marry a woman, because it had been represented to him. that her father had money to leave her, whereas he was a bankrupt, and that she had a good social position, whereas she had been a bar maid. 20 204 So also, the fraudulent concealment of material facts, inducing a promise of marriage, will justify a refusal to perform the contract or constitute a good defense to an action for the breach of it.205 Thus, where one of the parties to an executory contract to marry, discovers that the other is a person of immoral character, he may renounce the contract.206 If a woman, for instance, on entering into an engagement of marriage, conceals from her intended husband the fact of her previous unchastity, or that she is then pregnant, or the fact that she is physically unfit for sexual intercourse, such concealment is a fraud which will justify the withdrawal of the promise made to her and furnish a defense to any action for its breach.2 207 So, a woman may withdraw a promise of marriage on discovering that the man is afflicted with a venereal disease.208 But of course there must have been an ac

208 Gross v. Hochstim, 72 Misc. Rep. 343, 130 N. Y. Supp. 315; Beach v. Beach, 160 Iowa, 346, 141 N. W. 921, 46 L. R. A. (N. S.) 98, Ann. Cas. 1915D, 216; Bell v. Eaton, 28 Ind. 468, 92 Am. Dec. 329; Leeds v. Lock, 4 Esp. 166; Wharton v. Lewis, 1 Car. & P. 529; Foote v. Hayne, 1 Car. & P. 546. But compare Carris v. Carris, 24 N. J. Eq. 516.

204 Wharton v. Lewis, 1 Car. & P. 529.

205 Gross v. Hochstim, 72 Misc. Rep. 343, 130 N. Y. Supp. 315. 206 Colburn v. Marble, 196 Mass. 376, 82 N. E. 28, 124 Am. St. Rep. 561; Foster v. Hanchett, 68 Vt. 319, 35 Atl. 316, 54 Am. St. Rep. 886; Williams v. Fahn, 119 Iowa, 746, 94 N. W. 252.

207 Espy v. Jones, 37 Ala. 379; Denslow v. Van Horn, 16 Iowa, 476; Snowman v. Wardwell, 32 Me. 275; Goddard v. Westcott, 82 Mich. 180, 46 N. W. 242; Carris v. Carris, 24 N. J. Eq. 516; Kujek v. Goldman, 150 N. Y. 176, 44 N. E. 773, 34 L. R. A. 156, 55 Am. St. Rep. 670; McKane v. Howard, 202 N. Y. 181, 95 N. E. 642, Ann Cas. 1912D, 960; Button v. McCauley, 38 Barb. (N. Y.) 413; Van Storch v. Griffin, 77 Pa. 504; Gring v. Lerch, 112 Pa. 244, 3 Atl. 841, 56 Am. Rep. 314; Goodall v. Thurman, 1 Head (Tenn.) 209; Irving v. Greenwood, 1 Car. & P. 360; Young v. Murphy, 3 Bing. N. C. 54; Foulkes v. Sellway, 3 Esp. 236; Garmong v. Henderson (Me.) 95 Atl. 409.

208 Trammell v. Vaughan, 158 Mo. 214, 59 S. W. 79, 51 L. R. A. 854, 81 Am. St. Rep. 302; Gardner v. Arnett, 21 Ky. Law Rep. 1, 50 S. W. 840; Beans v. Denny, 141 Iowa, 52, 117 N. W. 1091.

tual deception of the person imposed upon, and he cannot claim to be released from his promise on account of any facts which were within his own knowledge at the time he gave it. One cannot refuse to redeem his promise to marry a woman on account of her lack of chastity where he himself was her seducer,' 209 nor on account of her ill health, when he knew at the time of the engagement that she was an invalid.210

Further, in this case as in regard to other contracts, one is chargeable with knowledge of such facts and circumstances as are patent to his observation or discoverable by proper attention or reasonable inquiry. "When a man enters into an engagement of marriage with a woman," says the court in Pennsylvania, "he is presumed to have made himself acquainted with her appearance, her temper, her manner, her character, and other matters which are obvious to the understanding, and which can be ascertained in the social intercourse which usually accompanies courtship. If he changes his mind and refuses to marry her for a defect which is open to observation, and which he might have ascertained before by reasonable care, it is no defense to an action for breach of promise of marriage." 211 Thus, circumstances tending to throw discredit upon the mother of the plaintiff, and so to show the social degradation of the plaintiff herself, are not available in defense to an action for breach of promise, unless fraudulently concealed from the defendant.212

It is also important to observe that mere silence on the part of a woman, when no inquiries are addressed to her by the man to whom she is engaged, though resulting in the concealment of matters which would have broken the engagement if known, except in regard to her previous unchastity, does not constitute fraud on her part.213 But if

209 Houser v. Carmody, 173 Mich. 121, 139 N. W. 9. But compare Erwin v. Jones (Mo. App.) 180 S. W. 428.

210 Lemke v. Franzenburg, 159 Iowa, 466, 141 N. W. 332. See Parsons v. Trowbridge, 226 Fed. 15, 140 C. C. A. 310.

211 Gring v. Lerch, 112 Pa. 244, 3 Atl. 841, 56 Am. Rep. 314.

212 Lewis v. Tapman, 90 Md. 294, 45 Atl. 459, 47 L. R. A. 385.

213 Coiburn v. Marble, 196 Mass. 376, 82 N. E. 28, 124 Am. St. Rep. 561; Potts v. Chapin, 133 Mass. 276.