Keire, et al. v. Kutcher

Keire, et al. v. Kutcher

The partnership agreement required written consent for any sale; the sale breached that agreement but, because the selling partner and purchaser were not parties before the court, the court could not set aside the transaction and the appellant demonstrated no loss entitling him to damages; s.42 of the Partnership Act properly governs recovery for outgoing partners and the trial judge’s accounting and inclusion of foregone interest were within discretion. The appeals were therefore dismissed with costs.

Citation
C11346, C19079, C22287
Parties
Plaintiff (respondent): Dr. Knute Keire; Plaintiff (respondent): Dr. Roy Gordon Smith; Defendant (appellant): Dr. Victor Kutcher
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 November 1999
Procedural Posture
Civil / Appeal From Trial Judgment and Orders
Outcome
Appeals dismissed with costs.
Legal Topics
Partnership Dissolution, Sale of Partnership Interest, Accounting and Taking of Accounts, Remedies for Breach of Partnership Agreement, Interpretation of Partnership Agreement, Partnership Act S.42
Source Language
English
Partnership Law Contract Civil Procedure Equity Partnership Dissolution Sale of Partnership Interest Accounting and Taking of Accounts Remedies for Breach of Partnership Agreement +2 more

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Parties

Dr. Knute Keire

Plaintiff (respondent)

Dr. Roy Gordon Smith

Plaintiff (respondent)

Dr. Victor Kutcher

Defendant (appellant)

Procedural Posture

Civil / Appeal From Trial Judgment and Orders

Legal Issues

  1. 1 Whether the sale of a partner’s share without written consent was effective against the appellant
  2. 2 Whether the court could set aside or ignore the sale to treat appellant as a 1/3 partner
  3. 3 Proper application of Partnership Act s.42 regarding profits or interest after dissolution

Ratio Decidendi

The partnership agreement required written consent for any sale; the sale breached that agreement but, because the selling partner and purchaser were not parties before the court, the court could not set aside the transaction and the appellant demonstrated no loss entitling him to damages; s.42 of the Partnership Act properly governs recovery for outgoing partners and the trial judge’s accounting and inclusion of foregone interest were within discretion. The appeals were therefore dismissed with costs.

Court Disposition

Appeals dismissed with costs.

Orders

  • Appeals dismissed with costs.