
    Thomas A. Eagle and others v. Jacob Bucher.
    "When several persons form an association, by the subscription of stock and the adoption of a constitution, to procure gold from, the mines of California, and agree to-send eight persons, to be selected from their number, to labor in obtaining such gold, under an agreement to furnish them with outfits and money for their expenses, and on their return to have an account and division of the articles of value which they may acquire: Held—
    That the persons thus selected to labor for the association, though members, stood also in the relation of employes of the association, and their refusal, after arriving in California, to work together, and the partition among • themselves of the property of the association, without its knowledge or consent, and with a view of aiding their separate and independent labors do not work a dissolution of the association, nor discharge them from obligations to it under their contract.
    ■Such act of separation and abandonment of duty exonerates them from liability to each other, but not to the association.
    It is competent for the association to compel an account and payment by either of the eight, of his earnings while thus working separately, in favor of the other members of the association, or to sue either of them for a breach of his contract, at its election.
    But in taking a decree against one of such laborers, for the proportion of his earnings which is due to the association by the terms of the contract, all of the eight should be excluded from the distribution, except those who render an account, pursuant to the articles of association.
    Bill in chancery. Reserved in Ashland county.
    *In January, 1849, the complainant and defendant formed themselves into a company, which they named “ The Mohicansville Mining Association,” for the purpose of acquiring gold and other articles of value in California. It was agreed that the capital to be -employed should not be less than $800, to be divided into thirty-two shares of $25 each, and that the members should select from their own numbers such men as they wished to send to the gold regions to obtain gold; and that the persons so selected should be ■required to go to the mines and use all honorable means to acquire :as much gold and other articles of value as possible, and return the ■same to the association in Mohicansville within two and a half years from the time they should start. The association was to furnish the equipments and expenses of those who should be sent to the mines. The gold and articles of value which should be acquired, were to be divided as follows: First, The expenses of those who should go to California (over $200 to be advanced by the association to each one of them), was to be first taken out. Second, One-half of the balance to be retained by them. Third,, The remaining half to be divided among the members of the association in proportion to the amount of stock owned by each. If no gold was obtained, th'e stockholders were to lose their stock, and those who went to California were to lose their time.
    There were some thirty subscribers to what they called their constitution, and. about $1,700 paid in as stock. The members then elected eight of their number to go to California, of whom the defendant was one. The whole amount of the money which had been raised as stock, was expended in furnishing these men their outfits .and expenses for the journey, and with implements to use after arriving in the gold regions; and on the 5th of April, 1849, they *left Mohicansville, in Ashland county, for California, by the [297 overland route, and arrived at Sacramento about the 15th of September of that year. On the way they had difficulties and quarrels among themselves, and in four or five days after reaching California they sold out what property was on hand, divided the proceeds among themselves, and each one took his own way. Several of them said “they would not pay a d — d cent to the company;” but Bucher said he would do what was right, provided the rest would. Before the expiration of the two and a half years, David Kauffman, one of the eight, died. The defendant and four others-returned to Mohicansville. The other two remain in California. During the two and a half years no intercourse was had between the association and any of the eight in California.
    Bucher returned home in 1851, bringing with him a large amount of gold, but he refused to pay anything into the treasury of the association, or to give any account of his earnings, or to acknowledge in any way the right of the other members of the association to share with him his earnings. Philip Wertsbaugher, one of the. eight, returned with a small amount of gold, and settled with the association, or at least offered to comply with the constitutional requirements.
    This bill is filed in the names of the other members of the association against Bucher, to compel an account and payment by him pursuant to the articles of the constitution.
    Bucher in his answer offers to refund to the association one-eighth of the $1,700 which he and his seven companions received, deducting therefrom his subscription of stock; but he protests that the-.other members have no legal or equitable claim upon him for any further share of the avails of his labor or enterprise, accruing after 298] he *was abandoned by his associates, and after the design of the association had been defeated by what he claims was its dissolution. He renders an account of what he accuinulated in California, showing himself in possession of $12,130, exclusive of all expenses.
    The cause in the court below was referred to a master to state an account between the parties, who made a report in the premises, to which exceptions were filed by defendant.
    
      John P. Jeffries, for complainants,
    cited Story on Part., secs. 2, 40-50, 57, 58, 172-174, 276, 277; Gow on Part. 19, 303, 308; Collyer on Part. 14, 15, 17-20, 23, 68, 117-120; 1 Parsons on Contr. 135, note; 3 Kent’s Com. (4 ed.), secs. 33, 34, 43, 53, note; 5 Ves 228; 16 Ib. 56; 17 Ib. 298; 18 Ib. 300; 19 Ib. 459, 461; 7 Mass. 29; 15 Ib. 370; 1 Johns. Ch. 467, 305; 9 Ib. 470; 15 Johns. 525; 1 Denio, 341; 3 Comst. 132; 3 Mason, 138; 6 Pick. 124, 125, 335; 14 Ib. 192; 1 Story’s Eq. Jurisp., sec. 465, note p, 507, 668; 3 Story, 108; 5 Watts, 196; 8 Serg. & Rawle, 103; 15 Ib. 137; Cary on Part., sec. 11; Poth., No. 59, 150-154; 4 Wash. C. C. 234; 1 Swanst. 495; 7 Wend. 57; 14 Ohio, 311; 5 Ark. 270; 1 Sim. 52.
    
      P. B. Wilcox, on same side,
    cited, in addition, 1 R. I. 430; 20 Wend. 70.
    
      Levi Cox, for defendant,
    cited 1 Ohio, 94; 3 Ib. 425; 16 Ib. 166; 9 Johns. 470; 14 Ib. 320; 17 Ib. 525; 19 Ib. 538; Parsons on Contr. 130, 131, 171; 5 Dana, 313; 8 Watts & Serg. 262; 1 Whart. 388; Collyer on Part. 94, sec. 110.
    Other authorities cited for defendant: Bisset on Part. 55 (85), and notes; 3 Kent’s Com. 52, 8, 9; 7 Am. Com. Law, 238, 239; 6 Johns. 147; 8 Wend. 442; 14 Pick. 332; Story on Part., secs. 307—309.
   *Bowen, J.

The parties interested in this cause properly denominated themselves an “ association.” Their organization was-completed by the adoption of a constitution, to which they all subscribed. The object of thus uniting together is fully defined. It was limited to one purpose — a mining adventure — to be conducted upon terms set forth and agreed upon. In the fruits of that adventure all were to participate according to what were deemed equitable rules. To carry on the enterprise capital was necessary to be •raised and expended, and labor must be performed in a region two thousand miles or more distant from the locality of the associated body. These two points were therefore primarily considered and decided upon. From the members of the association eight were to •be chosen to perform the journey to the mines, and, after reaching there, to employ their skill and industry in procuring the golden treasure for themselves and companions in the enterprise. Within ■a given period they were to return and place into the treasury of the parent institution the productions of their labor for distribution •among its several members. When they separated from the association, to go to their remote place of employment, they took with them in teams, implements for mining, provisions, and money, all of its resources. These they were to retain, as well as one-half of their net gains, but were to divide the other half with their fellow-associates. They must be regarded as employes — as hired men— laboring by contract for the association, whose delegates and servants they were. They might properly co-operate together, might choose a captain and other officers from their own members to direct their affairs on the way, and during their continuance abroad. This they attempted to do ; and while we are free to concede that they had full power, as detached and separate members of the association, required by the nature of their ^undertaking, to act [300 without its presence and advice, to regulate by rules of their own the duties to be observed by themselves, yet they could not, by such private regulations, dissolve the association, nor release themselves from their contract to labor and account for their earnings, or to -answer in damages for a breach of-it. The determination which they formed and acted upon after reaching California, of appropriating the property of the association among themselves individually, and of working separately, in disregard of their obligations to the association, was a most inexcusable and immoral violation of their written and valid obligations to their principals. That act can only be characterized as one of marked dishonesty and bad faith. As between the eight, it was a relinquishment of each to the others of all claims to their joint earnings. Each accepted the proposal to work alone, and share separately the benefits of his individual labor, without any recourse upon the others; but as to the association into whose service they had entered, and whose interest they had undertaken to promote, they could not, by this ex parte and wrongful movement, relieve themselves from liability. Whether they wrought jointly or separately; whether their earnings were large or small; they were nevertheless responsible to the association, and could be required to account to it for whatever they made during the time they were thus employed.

The principle relied upon by-defendant’s counsel, that a partnership may be dissolved by the act of one of the partners, we do not, in the view we take of this case, intend to impugn. That is too well settled to be now questioned. But to effect that purpose the act must be done with a view to its accomplishment. It should be communicated at once to the other members of the firm. They must be advised of the new relations created by the withdrawal of 301] *a member, or a- transfer of his interest in the concern. Their future relations toward each other, and their pursuit of the particular enterprise, depend on the acquisition of such knowledge.

Now, whether the eight men intended anything more than the dissolution of their own organization, and liberty to each to work when and -where it best suited him, does not seem to be very clear. Some of them said they would never pay anything to the association. But they did not, certainly, by any expression or act signify that they intended to dissolve the original association. Their acts do not indicate that to have been their object. They were willing, doubtless, to free themselves from working together, and from, reporting any account of their gains. . But as we have before shown, while they might accomplish these ends as between themselves, they could not, standing as they did in the places of hired men, far removed from the observation of, and without the means of communicating with, their co-members at home — bound by their agreements to serve as such, and to give statements of their labor within the time agreed on — disconnect and discharge themselves from the association.

If the defendant was fortunate in his visit to and labors in the mines- — if his hopes were more than realized by his good luck in procuring gold in large amounts — he ought to have borne in mind that the aid of the Mohieansville association" rendered to him had mainly contributed to his good fortune — that in reality he owed it to the organization of that body and the employment of the means it gave him to engage in the enterprise; and that, however others bad fared wbo bad gone on tbe same errand with himself, or however faithless they may have been to their employes, it was bis duty, in tbe true spirit of tbe agreement, to share with his patrons tbe fruits of his toil *and good management. This be de- [302 elined to do, and it is in this proceeding sought to coerce him to perform that which be has, against equity and conscience, refrained from doing; and we think the appropriate relief should be granted.

Tbe exceptions to tbe master’s report must be sustained, and an account taken as to tbe amount of money earned by the defendant. One-half of tbe sum found to be in his hands, be will be allowed to retain. Tbe other half must be distributed to tbe holders of tbe stock of tbe association, pro rata, but excluding all of the eight wbo went to California, except tbe defendant and Philip Wertsbaugher. Tbe stock subscribed by them to share in tbe distribution with the others.

Decree accordingly.

Bartley, C. J., and Swan and Scott, JJ., concurred.

Brinkerhoee, J., having formerly been of counsel in this case, did not sit on tbe bearing of it.  