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Scottish Court of Session Decisions >>
Mr. Robert Freebairn v Richard Watkins. [1746] Mor 14602 (13 June 1776)
URL: http://www.bailii.org/scot/cases/ScotCS/1746/Mor3314602-035.html Cite as:
[1746] Mor 14602
The Rights and Obligations of Partners must be determined by the Custom of the Company.
Mr Robert Freebairn v. Richard Watkins
Date: 13 June 1776 Case No. No. 35.
Shares in a patent for a monopoly were found not obliged to trade in Company, after they had traded separately for a long time, seeing that the copartnership and been in that respect departed from, and matters were not entire.
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Mr. Robert Freebairn, in concert with James Watson and John Basket, obtained, anno 1711, to himself and his assignees, a gift of the office of King's printer, and assigned third shares thereof to his two partners, and articles of agreement were drawn up amongst them for the joint management of the trade. This project however never took effect, but the three partners traded separately, printing each for their own benefit such books as fell under the patent.
Mr. Freebairn brought a process against Richard Watkins, assignee to Watson and Basket, to have it declared, that he behoved to carry on the trade in company with him, and offered proposals for setting up a joint house.
Pleaded for Mr. Watkins, That as the original agreement was certainly departed from, and he at had at a great expense provided materials and set up a printing-house, he could not be obliged to enter of new into a society with Mr. Freebairn.
Pleaded for Mr. Freebairn, That the original patent to him and his assignees meant that they should together carry on the trade, else the intent was lost of confining the printing the books which fell under the patent to a privileged person or Company, since by assignations it could be divided into numberless shares, all the owners whereof might trade separately: That the assignations were to certain determined proportions of to profits and if the partners were not obliged to a ninety-ninth share was as good, and might draw as much profit as all the rest of the patent.
To obviate the inconveniency of forcing a society, and at the same time to fix the interest of the parties proportionably to their interest in the patent, it was proposed by some of the Lords, that they might act separately, and account to one another for the profits.
The Lords, 26th June, 1745, found, that Mr. Freebairn the pursuer was not entitled to compel Mr. Watkins to enter into a joint trade of printing patentee books with him; that the said Richard Watkins, in consequence of his rights, might print separately all or any of the books enumerated in the patent, and that he was not obliged to communicate to the said Robert Freebairn any share of the profits arising therefrom; and, on a bill and answers, adhered.
Act. A. Macdonall & Lockhart.Alt. W. Grant.Reporter, Dun.Clerk, Murray.
Fol. Dic. v. 4. p. 289. D. Falconer, No. 112. p. 133.
