It is apparent from the memorandum made by the court below upon the appointment of the receiver herein that it was based upon the fact that the parties to the action were partners with each other, and that, as irreconcilable difficulties had arisen between them, the appointment of a receiver became á matter of course. We fail to see how it is possible to hold the plaintiff and defendant as copartners in the business which was being conducted by the defendant under the firm name of Brown & Pulverman. The complaint was not drawn upon any such theory, and the affidavit of the plaintiff upon which this motion was founded admits that such was not the fact. The plaintiff declares that the copartnership was dissolved by the death of her testator, and the relief demanded is that an account be taken of all the dealings and transactions of said copartnership from the time of the commencement to the time of its dissolution by the death of Brown, and that the defendant account for all his dealings and transactions in regard to the property, assets, and effects of said copartnership since such dissolution, and, further, that the said copartnership be adjudged and decreed to be dissolved. This latter prayer was merely asking for a legal adjudication that by the death of Brown the copartnership had been dissolved, and not in any way was it claimed that the plaintiff was entitled to any relief except as representing the interest of Brown, deceased. An examination of the articles of partnership annexed to the complaint shows that the relation of partners does not exist between the plaintiff and the defendant, and that the copartnership did not continue after the death of the plaintiff’s testator, unless a copartnership can be composed of one individual. The defendant was merely the surviving partner of a partnership which had been dissolved, and carrying on business as such according to the terms of the articles of co-partnership between himself and the plaintiff’s testator.
It is to be observed that by the articles of copartnership it is provided that the death of neither of the parties shall work a dissolution of the partnership, but that in the event of the death of the party of the first part, viz., Brown, the party of the second part, the defendant, shall continue the business, and pay the widow of the party of the first part $100 a month during her life out of the profits arising on the interest of said party of the first part as it existed at the time of his death; and that on the 1st days of January and June a balance should be struck, and the defendant should pay to the said widow the amount of any balance to her credit; and, further, the said widow of said party of the first part shall have a right, either by herself or her authorized representative, to examine the books of the firm at any time. This latter provision shows conclusively that it was not the intention of the parties that the widow should be a partner; otherwise it would have been entirely unnecessary to grant an authority upon the part of the widow to examine the books. Then follows a provision in respect to what should be done in case of the death of the defendant. In the event of his widow surviving him she is to be paid *807a monthly stipend and a balance of profits by the party of the first part, but no provision is made for an examination of the books by the widow of the defendant; and it would hardly be claimed under this provision that in case of the death of the defendant his widow would have been entitled to exercise the rights of a partner.
The articles contained the further provision that whenever the partnership was terminated for any cause there should be an accounting and adjustment of copartnership affairs, and that the party of the first part, or his legal representatives, within six months, shall pay to the defendant the sum to bis credit on the books of the firm at the time of the dissolution, together with his proportionate share of the profits and increase of the firm, and then provided that the good-will and firm name should be the exclusive property, in any event, of the party of the first part and his representatives, except as provided in sections 18 and 19. By paragraph 18 it is provided that in the event of the death of either of the parties not leaving a widow, or in the event of the death of the widow of either of the parties, during the continuance of the agreement, then the entire good-will of the business shall belong to the surviving partner, subject only to a legal accounting to the legal representatives of said deceased partner, or if he dies leaving a widow him surviving, then to the legal representatives of his widow, for the profits accrued at the time of the death of said deceased partner, or at the time of the death of bis widow, if said partner dies leaving a widow him surviving. Paragraph 19 provides that after the death of both Brown and his widow the firm name may be used by the defendant to continue the business on his own account, but he shall have no power to use said firm name except in accordance with the terms of the agreement at any time prior to the death of Brown or his widow, without written agreement to that effect. These provisions show that it was the intention of these articles that the business should continue during the life-time of the partners, and, if either of them died, of his widow, in order to provide for such widow during her life, and that, if the partner Brown died first, leaving a widow, upon the death of the widow the defendant was absolutely entitled to the good-will and firm name without being liable in any way to the legal representatives of said Brown or of his widow. The articles further provide for an indefinite continuance of the partnership unless six months’ notice should be given by either of the parties thereto or the widow of the partner Brown. They provide that in case of a dissolution of the copartnership by notice from the defendant after the death of Brown, and without the consent of his widow, the defendant should not during the life-time of the widow act as an advertising agent, etc., within certain limits. Under these circumstances it is difficult to see how the relation of partners existed between the plaintiff and defendant. Whatever her rights may be in respect to this business, it does not seem to be that of partner. Neither has the plaintiff any interest in the firm name or the good-will of the business which can extend beyond her life, as the provision of the articles is that after her death the defendant shall own this firm name, and be at liberty to continue business without accounting either to Brown’s representatives or to his widow’s.
We think that if a claim was made against the plaintiff as a copartner in this business for losses sustained in the business, the claimants would find it exceedingly difficult to hold her individually or representatively liable therefor. It having been the manifest intention of the parties that in case of the death of either the survivor should continue the business, and have sole charge thereof, there should be exceedingly cogent reasons adduced, before the court should deprive the surviving partner of the fruits of that which had been assured to him by the agreement with his copartner. Taking possession of the business in question would seem to be its absolute destruction, and would work irreparable injury to the defendant, who alone has the right to continue *808the same. The facts presented upon the moving affidavits are denied in the main, and the true condition of affairs can only be ascertained by the examination of witnesses, and there is no evidence that irreparable injury will happen to the plaintiff if final relief is postponed until the decision of the questions of fact upon the trial. In the decision of this appeal we express no opinion as to what the ultimate rights of the plaintiff might be in an action brought in the form of the one at bar, leaving that question to be determined upon the trial of the case. We think, therefore, that the order appointing the receiver should be reversed, with $10 costs and disbursements to the defendant to abide the final event.
Patterson, J. I concur.