I agree with Mr. Justice Scott that neither the illness of the defendant nor the- notice served by the plaintiff effected a dissol u*675tión of the copartnership, and that it can be dissolved on account of the illness of the defendant only by decree of the court. I do not, however, agree with the view that a copartnership may not be dissolved on account of the mental or physical incapacity of one of the partners to perform the services for the copartnership, which it was contemplated by the parties should be performed by him at the time the copartnership agreement was made, unless it is established that such incapacity is permanent / that is, I take it, unless such incapacity will continue throughout the term prescribed by the articles of copartnership for the continuance of the business. There is nothing in the nature of a copartnership by which one partner takes the other, as to mentality or health, for better or for worse. It is but an ordinary contract in which the public have no interest, and if the condition of one partner, at the time the court is called upon to decide, the question, be such that lie is incapacitated, either mentally or physically, from performing duties of a substantial nature, which it was contemplated would be performed by him, and it appears that he will not recover from such incapacity within a reasonable time in view of all the circumstances, I see no reason on principle why the copartnership should not be dissolved if the competent partner be unwilling to continue it longer, and, therefore, I think we should- not follow the English. authorities to the extreme extent to which they appear to go, viz., that there can be no dissolution on such grounds unless the disability be permanent, the logical effect of which ruling is that if the disability occurs immediately after the commencement of a copartnership, the period of which is twenty-five years, and the disability is likely to continue for twenty years but is likely to terminate before the expiration of the twenty-one years, then the copartnership cannot be dissolved. The nature of the duties which a partner agrees to perform may be such as to entitle his copartner to a decree of dissolution, even though it may appear that.at a future period, before the termination of the copartnership as originally contemplated, the incapacity of the defendant member of the firm may cease and he may be - restored to such a condition .of health as to enable him to perform the duties thereafter. This question in each case should be determined, I think, on the particular facts in view of the provisions of the copartnership agreement.
*676In the' case at bar the articles of copartnership are somewhat unusual, in that it was originally provided that “ In the event, of the interest of either partner in said business terminating by limitation agreement, death or otherwise, his rental and such interest in capital, furniture, fixtures, implements^ manufactured and unmanufactured merchandise of said copartnership shall be paid to him or to his legal representatives in five years with legal interest semi-annually to be computed from the date of such termination; such furniture, fixtures and implements to be valued at the price put upon them in the last preceding inventory thereof, and such unmanufactured merchandise • to be valued at cost,” and that in that event the interest of each partner in the manufactured but unsold merchandise should be estimated at the cost thereof at the time of the termination of the copartnership, and that the interest of eagh partner in the net profits of the business arising from merchandise sold “ before such termination shall be paid within five years- after such.termination, without interest,” and that upon the termination of the copartnership for any reason no allowance should,be made to either party.or to his representatives for the good will or firm name of the business, or for trade marks; copyrights or labels or rights to use the same, and that neither the good will, firm name, trade marks, copyrights or labels or rights to use the same should be treated or estimated. as an asset of the copartnership, but that. “ such goodwill, firm name, trademarks, copyrights and labels and rights shall revert to the estate of William O. Barclay, deceased, and to said Reginald Gr. Barclay,” and that the liquidation of the business upon the termination of the copartnership in any way should be in the hands of and under the control “ of the surviving and remaining partner, but the legal representatives of á deceased partner shall have a voice in such liquidation.” These provisions were modified by a .supplemental agreement between the parties made on the ,7th day of February, 1908, which extended the copartnership until the'1st day of January, 1913, and provided “ that in the event of the termination of said copartnership by limitation, agreement, death or otherwise the share of the said partners shall be paid to them or to their respective representatives within five (5) years of said termination, but in instalments of not less than twenty-five thousand (25,000) dollars in each and *677every year succeeding such .termination, with interest at and after the rate of six (6) per centum.”
Counsel for the plaintiff claims and. counsel for the defendant appears to concede that the effect of these provisions is that on the dissolution of the copartnership, either before or at the expiration of the period specified for its continuance, the capital of the outgoing partner must remain in the business continued by the remaining partner for the period of five years, the outgoing partner to have no voice in the management of the affairs of the business except as provided, as stated, for the termination by the death of one of the members, and to have no share in the profits derived from tlie business in which his capital is at risk and to receive only interest thereon for the use thereof. In view of these unusual provi-' sions, and of the indefiniteness of the evidence with respect to the duties that it was 'expected would be performed by the defendant, and of the fact that the evidence does not clearly'and.satisfactorily show that at the time of the trial the defendant was unable to perform the duties which it was contemplated would be'performed by him when the copartnership agreement was made, I concur in reversing the judgment and granting a new trial.
Ingraham, P. J., concurred.
Judgment reversed, new trial ordered, costs to defendant to abide ■ event.