A partnership (495) between medical men is an association of persons, standing to one another in the relation of principals, for jointly carrying out the objects of their profession, with an agreement to share the profits.

The general laws relating to partnerships apply to those of medical men or dentists. There can be no partnership, as between themselves, if the relationship of master and servant exists, or where there is no joint interest. No particular form of words is needed to create a partnership, nor need the agreement be in writing unless it is to last for more than a year from the date. If an agreement to form a partnership is broken an action will lie, if the terms of the agreement be clear and distinct; but the performance of such an agreement will not be compelled unless all the terms have been fixed and ascertained, and a definite time for its duration agreed on.

If one has been induced to enter the partnership through the fraud or mis­rep­re­sen­ta­tion of the other, the party deceived may at his option avoid the contract. But he should act promptly on discovering the deception. Where a surgeon was induced to enter into partnership with, and pay a large premium to another, in consequence of "190" mis­rep­re­sen­ta­tions as to the amount of income derived from the practice, a dis­solu­tion was decreed and a return of part of the premium (496); and where a practitioner took a partner and a premium, and agreed to continue practising for three years, concealing the fact that he was suffering from a disease which soon carried him off, his executor was ordered to return part of the premium (497).

Partners are trustees and agents for one another, and must exercise the most perfect good faith towards one another. One cannot sue the other for his share of the profits until the accounts have been stated and settled between them. One medical man cannot, as a rule, bind his partner by borrowing money, even to pay partnership liabilities, or by making or drawing promissory notes or bills of exchange; but he may generally do so by simple contracts, within the scope of the business.

In England, it appears that there is nothing illegal in the partnership of a qualified and an unqualified practitioner, and that it will be sufficient if only one member of the firm be registered (498).

A partnership may be dissolved by mutual agreement, or by the effluxion of time. A wilful and permanent neglect of business is a ground for dissolution; so is gross misconduct by a partner in reference to partnership matters. Immoral conduct materially affecting the business will be a ground for dissolution; also, insanity, or permanent incapacity (499). On a dissolution the partners may separately carry on the business at any place, unless restrained by agreement. "191"

Sir John Leach considered that in a partnership, between professional persons, upon the death of one partner the good-will of the business belonged to the survivor, and that he was not bound to account to the representatives of the deceased partner for it (500).

A good-will attaches to a professional, as well as to any other kind of business, and it is and may be the subject of purchase and sale; and although it is not computable, and the sale of it is not enforceable by an action for specific performance if it has not been estimated, yet it does stand on the same footing as any other business, if the parties have fixed a determinate price upon it, or have provided any other way of fixing its value (501). The good-will of a medical man’s business is an asset of his estate which his representatives can sell, and for which they must account if it is sold. But it is not clear that the representatives can be compelled to find a purchaser (502).

Jessel, M. R., recently asked the question, “What is the meaning of selling a medical practice?” And in answering his query he said, “It is the selling of the introduction of the patients of the doctor who sells to the doctor who buys, he has nothing else to sell except the introduction. He can persuade his patients, probably, who have confidence in him to employ the gentleman he introduces as being a qualified man, and fit to undertake the cure of their maladies, but that is all he can do. Therefore, when you talk of the sale of a non-dispensing medical practice—of course, when a man keeps what is called a doctor’s shop, there is a different thing entirely to sell—you are really talking of the sale of the introduction to the patients, and the length, the "192" character and duration of the introduction, the terms of the introduction are everything. And there is something more, according to my experience, in cases of the sale of medical practices; there is always a stipulation that the selling doctor shall retire from practice either altogether or within a given distance. It is so always, and there is also sometimes a stipulation that he will not solicit the patients, or shall not solicit them for a given time. They are both very important stipulations as regards keeping together the practice for the purchasing doctor” (503).

The general rule of law is, that any contract in general restraint of trade or industry is illegal and void as contrary to public policy; but such contracts are valid if they operate merely as a partial restraint, and are made for good consideration, and not unreasonable. Whether they are reasonable or not, is for the Court, not the jury, to say. A contract made with an assistant, or with a partner, that upon separating from the principal, or partner, he will not practise within a certain section of country, or for a certain time, is valid when made in consideration of instruction to be given, or pecuniary or other benefits to be enjoyed in consequence of the partnership. The limits must be reasonable, and when the contract is not to practise within so many miles of a certain place, the distance will be measured “as the crow flies,” unless otherwise mentioned (504).

Covenants, on the part of an assistant to a surgeon and apothecary, not to practise on his own account for fourteen years, in a certain town, or within ten miles of the town; and not at any time to practise within five, seven, ten, twenty miles of certain places, have been all respectively "193" held good (505). The comparative populousness of the district forbidden ought not to enter into consideration at all; and an assistant to a dentist was held bound by a covenant not to practise in London, not­with­stand­ing that city had a population of over a million (506). But a stipulation not to practise within one hundred miles of York, in consideration of receiving instruction in dentistry, was held void (507).

A promise, whether verbal or written, made without good consideration by a medical man not to exercise or carry on his profession within certain limits is void. The stipulations in a contract not to practise are divisible, and if part of them be unreasonable, and therefore illegal and void, the agreement is not void altogether; and the remaining stipulations, if valid, will not be affected by the illegality of the others (508).

The relations of medical men to their apprentices, assistants and pupils, are, as a rule, regulated by the ordinary law of master and servant. No particular words are needed to create the relationship of master and apprentice, or master and assistant, the intention of the parties will be considered, nor need the agreement be in writing, unless it is not to be performed within a year from the making thereof (509). A master is liable on contracts entered into by his apprentice or assistant, when he has authorized him to enter into any such contract, either expressly, or by implication. For instance, if an assistant usually orders drugs "194" on credit, and the master usually pays, the master will be held liable to pay for any goods of a similar nature which the assistant may get for his own and not his master’s use (510). The master is also, as a rule, liable to a civil action for the wrongful acts of his assistant, unless they be beyond the ordinary scope of his employment; the plaintiff, however, must prove that the injury was produced by want of proper skill, where the act complained of is said to have arisen through want of skill (511). But the master will not be criminally responsible for the acts of his assistant or apprentice, if the latter has caused the death of any one, unless, indeed, he has expressly commanded or taken part in the acts (512). In a case of criminal negligence, the apprentice himself is responsible; if a party is guilty of negligence, and death results, the party guilty of that negligence is also guilty of manslaughter.

An apprentice, or pupil, cannot be dismissed in as summary a way as an ordinary servant for misconduct. In one case it was held that though a person has a right to dismiss a servant for misconduct, still he has no right to turn away an apprentice because he misbehaves; and that the case of a young man, say of seventeen, who under a written agreement, is placed with a medical man as “pupil and assistant,” and with whom a premium is paid, is a case between that of apprenticeship and service; and if such an one on some occasions comes home intoxicated, this alone will not justify the surgeon in dismissing him. But if the “pupil and assistant,” by employing the shop boy to compound the medicines, occasions real danger to the surgeon’s practice, this would justify the surgeon in dismissing him (513). "195"

Pupils and others admitted to hear the lectures of medical men, whether such lectures are delivered ex-tempore, or from memory, or from notes, although they may go to the extent, if they are able to do so, of taking down the whole by means of shorthand, can do so only for the purposes of their own information, and cannot publish the lectures for profit without the consent of the lecturer (514).