Hunter v Dowling: CA 1893

The articles of partnership between the parties required an annual account. A retiring or deceased partner was to be paid out ‘at the amount standing to his credit in the last balance sheet which shall have been signed previously to the date of such retirement or death.’ On the death of a partner on 10 April 1891, no account had been taken for the year ending 31 March 1891. The question was whether his share should be ascertained by reference to the previous year’s account (which had been taken and signed) or whether the correct course was to direct that an account be taken for the year to 31 March 1891 and ascertain the share by reference to that account. A literal construction of the words ‘shall have been signed’ would have led to the conclusion that the relevant account was that for the year ending 31 March 1890.
Held: The Court rejected that construction. It ought to act on the basis that that which ought to be done must be treated as if it had been done. From 31 March 1891 each partner had an accrued right under clause 15 to have an account taken as at that date; and the personal representatives of a partner who died after that day had a right to be paid out as if that had been done.
[1893] 3 Ch 212
England and Wales
FollowedPettyt v Janeson 1819
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Cited by:
CitedIn Re White (Dennis) Deceased; White v Minnis and Another CA 25-May-2000
A family partnership had carried freehold property at its historic cost value in the books, rather than at a market value. After the death of one partner the share came to be valued.
Held: Being a family partnership there was presumption that . .

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Updated: 31 January 2021; Ref: scu.238860