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So in Brett v. Beckwith (c), a partnership was held to exist between underwriters, one of whom had agreed to take a joint share

and sold the coffee so remitted, and applied the same to the payment of the debts so due to them from A & M. P& R had notice, if not at the time of the shipment of the outward cargo, certainly before the bills remitted by M were collected, and the coffee sold and converted into money, that B & K were interested in and owned one-fourth of the cargo so sold by M; and B & K demanded of P & R their proportion of the proceeds so re mitted by M, after deducting commissions, etc., but P & R refused to pay or deliver thes are, alleging their right to retain the same for the payment of the debt due to them from A & M: Held, that no partnership existed between A & M and B & K, so far as to render the disposition of the return cargo by M binding, as the act of a partner, on B & K. That there was no agreement constituting a partnership in the purchase of the outward cargo, or to share jointly in the ultimate profit and loss of the adventure, and though there might be a partnership, so far as respected the transportation and selling of the outward cargo, for the joint profit and loss of the owners; yet it terminated with the sale of the outward cargo, and their interest in the return cargo was separate and distinct, each being entitled to his respective proportion of it, without any concern in the profit or loss which might ultimately arise; and that P & K not having received the bills in the course of trade, and knowing of the interest of B & K before the bills were paid, had no right to retain their share for the payment of the debt of A & M, but must account to B & K for their proportion. Post v. Kimberly, 9 Johns. 470.

Defendants received merchandise on consignment and for sale on plaintiff's

(c) 3 Jur. N. S. 31, in the Rolls.

account in New Orleans, where all parties resided, and agreed to charge no commission for purchasing or selling, and to allow plaintiff out of the proceeds interest for his advances in buying the merchandise, the profit or loss from the adventure to be equally divided. With defendants' consent the merchandise was shipped to New York, where it was sold at a sacrifice: Held, that defendants, whether agents or partners in an adventure, were not liable for the loss. Shaw v. Gandolfo, 9 La. Ann. 32.

A man who buys and ships for a firm of another city, whose funds are used, the profits or loss to be divided, and each shipment to be a distinct venture, is not a partner, and the firm can sustain a libel on a policy indorsed to them, without prejudice from his orders or mistakes. Marsh v. Northwestern Ins. Co. 3 Biss. 351.

Certain cattle were delivered to plaintiff and two other persons, to be kept for a time, at the expiration of which they were to be sold by defendant. After deducting the first cost of the cattle, defendant was to retain one-half of the remainder of the proceeds, the other half to be equally divided between the plaintiff and the other persons: Held, that in this there was no partnership, for there was no community of profit and loss, or of ownership in the subject of the contract. Beckwith v. Talbot, 2 Col. 639.

Upon performance of such contract by the three persons named therein, who were to have the care and herding of the cattle, each became entitled to his separate share of the proceeds of the cattle, and each could have his separate action for the failure of the defendant to

of the underwriting risks of the other, paying or receiving sums according to the result of the accounts.

These authorities are sufficient to show that an agreement to share profit and loss, is an agreement for a partnership, although the words partners or partnership do not occur in the agreement. () Indeed the writer is not aware of any case in which persons who have agreed to share profit and loss have been held not to be partners. (e) As will be seen hereafter, the existence of a common stock is not essential to a partnership.

*19

*2.-Partnership is prima facie the result of an agreement to share profits, although nothing may be said about losses and although there may be no common stock.

share profits

only.

Except in cases specially provided for by statute, an agreement Agreements to to share profits, nothing being said about losses, amounts prima facie to an agreement to share losses also; (f) for it is but fair that the chance of gain and of loss should be taken by the same persons; and it is natural to suppose that such was their intention if they have said nothing to the contrary. It follows from this, that where no statute interferes, an agreement to share profits is primâ facie an agreement for a partnership; and accordingly it has been held, that unless an intention to the contrary can be shown, persons engaged in any business or adventure and sharing the profits derived from it, are partners as regards that business or adventure. (g)'

perform his part of the contract in respect to selling the cattle, and diviaing the proceeds of the sale. Beckwith v. Talbot, supra.

(d) See, too, Greenham v. Gray, 4 Ir. Com. L. Rep. 501.

(e) In Mair v. Glennie, 4 M. &. S. 240, the expression profit or loss seems to have been used for gross returns. And in Geddes v. Wallace, 2 Bligh, 270, the arrangement as to profit and loss did not apply to the person as to whom the question of partnership or no partnership was raised.

(f) Greenham v. Gray, 4 Ir. Com. Law Rep. 501; Dry v. Boswell, 1 Camp.

330; Heyhoe. Burge, 9 C. B. 440, per Parke, B.

(g) See Pooley v. Driver, 5 Ch. D. 458.

Where two or more engage in business, having no mutual interest in the capital invested, and no stipulation for mutual loss, they have been held not to be copartners, though there be an agree ment to share profits. Vanderburgh v. Hull, 20 Wend. 70; Pattison r. Blanchard, 5 N. Y. 186; Fitch v. Hall, 25 Barb. 13; Cummings v. Mills, 1 Daly, 520: Loury v. Brooks, 2 McCord, 421.

Sharing profits is not invariably a test of partnership. The liability of one part

Indeed, it has often test of partnership. (h) Whether persons are really

been said, that community of profit is the This, however, is not accurate. Community of partners or not is a partnership.

ner for the contracts of another is founded on the relation they sustain of each being principal and also agent as towards the other. Harvey v. Childs, 28 Ohio St. 319.

In order to constitute a partnership, each person must have an interest in the profits as a principal in the joint business; a mere reception of a portion of the profits is insufficient. Campbell v. Dent, 54 Mo. 325; Benedict v. Hettrick, 35 N. Y. Superior Ct. 405; Harvey v. Childs, 28 Ohio St. 319. See, also, Loomis v. Marshall, 12 Conn. 69.

The allegation of a partnership between the master and mate of a vessel is not sustained by proof that the mate shipped for a share of the profits, unattended by other circumstances and without proof of what that share was to be. The Crusader, 1 Ware, 448.

Where three parties enter into an agreement and intrust the investment and management of a certain sum from a common fund in an enterprise to one of them, with a stipulation that they shall share equally in the profits after deducting the amount of the investment, such agreement constitutes a copartnership, and an accounting may be had. Harris v. Hillegass, 5 Pacific Coast L. J. 240.

Plaintiff and defendant agreed as follows: Plaintiff was to furnish the capital to carry on the business of manufacturing and selling woodenware, defendant to receive one-third and plaintiff two-thirds of the profits, nothing being said as to any losses: Held, that the mere fact that no provision was made in the agreement, whereby defendant was bound to pay his proportion of the loss

(h) Heyhoe v. Burge, 9 C. B. 446; Fox v. Clifton, 9 Bing. 799; Ex parte

profit as a test of

es, if any, did not prevent the parties to the agreement from becoming partners inter sese. Munro v. Whitman, 15 N.

Y. Supreme Ct. 553.

Where, however, by an arrangement between certain parties, one was to furnish money and the other was to buy cattle with it for the market, and the party furnishing the money was to have his capital returned, with 5 per cent. interest thereon, together with one-half the profits on the sale of the cattle, it was held, that the parties to this ar rangement were not partners, as the one furnishing the money was exposed to no hazard of loss. Adams v. Funk, 53 Iil. 219.

An arrangement between A and B for buying and selling on their joint account in the name of A and B, a certain quantity of pork, by which A was to furnish whatever money should be necessary in the business, aside from such advances as might be procured on said pork, and B was to attend personally to the purchase and shipment, and out of the proceeds of the sale, after deducting the costs, expenses and disbursements of every kind, A was to be reimbursed the amount advanced by him, with interest, and the residue, being the net profits, was to be equally divided between them, held, to constitute a partnership. Miller v.Price, 20 Wis. 117.

An agreement between two parties to carry on a particular business, in which real estate belonging to one of them is to be used, will be held to constitute a partnership, if the owner of the real estate is to be compensated for its use by a percentage of the profits of the busiAnd it is immaterial that, in the

ness.

Langdale, 18 Ves. 300.

question of intention, to be decided by a consideration of the whole agreement into which they have entered, and ought not to be made.

written contract between the parties, such compensation is described as rent. Dalton City Co. v. Dalton Manuf. Co. 33 Ga. 243.

Where all the parties had, by a contract entered into, a right to share in the profits of a business, and to use the capital invested, and an inchoate title to it, a partnership exists between them. Vassar v. Camp, 14 Barb. 341.

Where two persons agree to burn lime on shares, one to fill a kiln with stone, and the other to burn the kiln and furnish the wood, the lime to be equally divided between them, held, that a technical partnership existed between the parties. Musier v Trumpbour,5 Wend. 275. The owners of a ship agreed to fit her out for a voyage at the joint expense, and for the joint profit, of both: Held, that they were partners in the ship, as well as in the cargo; and the ship having been sold, under an authority given to the master, one of the owners, to whose hands the proceeds had come, was allowed to retain for so much as he had paid more than his share of the outfit, repairs, during the voyage, etc., though the other partner had made an assignment of his share before the proceeds of the ship were received. Mumford v. Nicoll, 20 Johns. 611.

A & B agreed by parol as follows: A was to erect a steam saw-mill on the land of B, and to manage the same at his own cost, and B was to deliver at the mill, at his cost, all the timber growing on a certain tract of land belonging to B, and they were to divide the profits of the sawing between them. The contract was complied with on both sides, until B's death, and then his administratrix declined to go on with it: Held, that this was a co-partnership which was dissolved by B's death. Jones ". McMichael, 12 Rich. 176.

A & B agreed to work together in the business of manufacturing marble. B was to furnish the marble, and A was to pay him one-half of the cost of it. B was to board A, and both were to contribute their labor and skill in the business, and the products and avails of the business were to be equally divided between them: Held, that they became partners, as between themselves. Griffith v. Buffum, 22 Vt. 181.

An agreement between T. a tinner owning a shop, and D. a plumber of large experience, to work together, T. to be allowed out of the profits of the business ten per cent. on his stock invested, and the remainder of the profits to be divided equally between them: Held, to constitute a partnership, though the business proceeded in T.'s name, and D.'s share of the profits remained in the concern. Tyler v. Scott, 45 Vt. 261.

An agreement whereby W. leased to B. for five years a manufactory; B. to furnish capital and personal labor, the net profits to be shared by the parties, the accounts to be open to the inspection of W. and periodical settlements to be made: Held, to constitute a partnership, and a breach of the terms to be a sufficient ground for equitable relief by a decree of dissolution. Wood v. Beatt, 23 Wis. 254.

An agreement to purchase and run a ferry boat to be owned by the subscri bers, in proportion to the amounts subscribed by each, the toll to be applied to pay expenses, and the balance, if any, to be divided among them pro rata, each subscriber to have the right to sell his stock, the purchaser to have all the rights of an original subscriber, and the association to continue as long as a majority of subscribers shall determine, constitutes the subscribers partners. Whitman v. Porter, 107 Mass. 522

to turn on one or two only of the clauses in it. (2) A good instance of this is afforded by the Irish case of Barklie v. Scott. (k)

One who had been sent, by Kansas creditors of a merchant of Salt Lake City, to collect their claims, arranged with him, with their consent, to take rayment in flour, salt, etc., ship the same to Montana, and there sell the same; but owing to a decline in prices, the venture resulted in a loss: Held, that the creditors became partners, and should share the loss pro rata. Stettauer v. Carney, 20 Kan. 474.

A, being the owner of a zinc-mine, entered into a written agreement with B, by which he agreed to furnish him a certain quantity of ore per annum, for three years, on being paid therefor $10 per ton, and B agreed to provide suitable buildings and machinery for its conversion into paints, etc., and to divide with A the profits of the enterprise, in the proportion of one-fourth to himself and the remainder to A; the cost of the buildings and machinery to be paid out of the profits after a specified time: Held, that this constituted A and B partners. Wadsworth v. Manning, 4 Md. 59.

An agreement between two persons that each shall furnish a horse to do certain work, and one to do the work and the other pay all the expenses, and divide the earnings equally: Held, to constitute a partnership. Gillbank v. Stevenson, 31 Wis. 592.

An agreement between two persons to share in the profits of an adventure or concern does not necessarily constitute them co-partners in respect to the concern or adventure from which the profits arise. Rice v. Austin, 17 Mass. 197; Newman v. Bean, 21 N. H. 93; Lamb v. Grover, 47 Barb. 317. See, also, Ferguson v. Alcorn, 1 B. Mon. 160.

(i) See the cases in the next note but

one.

(4) 1 Huds. & Br. 83. Compare Reid's

A mere participation of profits will not make the parties partners inter sese, unless such is their intention. Hazard v. Hazard, 1 Story, 371. See, also, ante, p. 18, note.

M. took a job of finishing a church at a certain price. Afterward, H. agreed to do it with him; the work of each to offset that of the other, and the expense of materials and of other help to bededucted from the contract price, and the balance divided equally between them. They did it accordingly, H. working 30 days more than M. Held, that they were not partners, as between themselves, and that H. could maintain assumpsit for the balance due him from M. Hawkins v. McIntyre, 45 Vt. 496.

Where a certain portion of the profits of a concern was set apart to pay the debt of A B, by a stipulation in their articles, A B being no party to the artices: Held, that A B was not a partner. Drake v. Ramey, 3 Rich. 37.

Where an agreement is made between two parties, that one shall furnish a farm with a certain amount of teams and labor, and the other shall manage the farm and give certain labor, the crops to be divided between them, a partnership is not constituted. Blue v. Leathers, 15 Ill. 31. See, also, Burdick v. Washburn, 36 How. Pr. 468.

A contract, by which one party agrees to furnish wheat to stock a mill, and the other party, with money advanced by the first, to purchase the wheat and convert it into flour, and, after deducting the original cost of the wheat, and two and a half per cent. thereon, to receive the proceeds of the sale of the flour, does

case, 24 Beav. 318, where the father who had transferred shares into his infant son's name was held a contributory.

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