FOREIGN LAWS. France.-Partnership is a contract by which two or more Definition of a partnership. persons agree to put something in common with a view to share any profit which may result from it. Every partnership must have a lawful object in view, and must be contracted for the mutual benefit of the parties. Every partner must bring either money or other property or labour (a). partnership. United States of America.-Partnership is a contract of two Definitions of or more persons to place their money, effects, labour, skill, or some or all of them in lawful commerce or business, and to divide the profit and bear the loss in certain proportions (b). Mexico.-A commercial partnership is a contract between two or more persons in virtue of which they become mutually bound for a certain time and under certain conditions to transact and prosecute conjointly various affairs in common risk, and account the profit and loss to be divided in proportion to the capital or labour invested by each partner at the expiration of the fixed term (c). Spain. A contract of partnership by which two or more persons unite together their property and labour, or either, with the intention of dividing the profits, is applicable to all kinds of commercial operations, with the exception of the modifications and restrictions imposed by commercial law (d). SECTION III. KINDS OF PARTNERSHIP. BRITISH LAW. The law recognises only two kinds of partnerships, viz., private partnerships with no more than seven partners, and public partnerships or companies composed of any number of partners with limited or unlimited liability. FOREIGN LAWS. France. There is a difference between a civil and commercial partnership. A commercial partnership exists only where it is formed for any of the objects which are deemed acts of (a) Civil Code, §§ 1832 and 1833. p. 20, 8th ed. VOL. I. (c) Ordinance of Bilboa, § 1. E Private partnerships and companies. Commandite partnerships in the United States. Kinds of partnership in Portugal. trade. There are three kinds of partnerships, viz.: 1st. Société en nom collectif, viz., that contracted by two or more persons for purposes of trade under a social firm. 2nd. Société en commandite, or that contracted by one or more persons responsible to the whole extent of their property, and one or more persons who simply invest in the partnership a certain amount of money. Such partnership is carried on under a social firm, which must include one or more of the responsible partners. 3rd. Société Anonyme, which is not carried on under a social firm or under the names of any of the partners, but under the name of the undertaking. It is managed by agents, partners, or nonpartners, who are only responsible for the due execution of the trust reposed upon them. The French commercial code recognises also Sociétés en participation, which are not carried on under a social firm or for any period of time, but consist merely in a participation of interest in certain operations. United States of America.-The law differs in different states. Commandite partnerships are allowed in Massachusetts, Connecticut, Pennsylvania, and New York. Germany. The code recognises general partnerships, commandite and dormant partnerships, and joint-stock companies. Netherlands.-There are in this country sociétés en nom collectif, commandite, anonyme, and associations en participation, the same as in France. Portugal. Besides the sociétés en nom collectif, en commandite, anonyme, and en participation, the law recognises a tacit partnership, which is supposed to exist when merchants meet together to carry on the same operations of trade, each bringing his capital and industry. The legal presumptions of the existence of such partnerships are, 1st, trading in common; 2nd, contracting and paying debts in common; 3rd, receiving money in common; 4th, sales and exchanges made in common; 5th, acquisition of property in common; 6th, public avowal of the existence of partnership; 7th, the choice by two or more persons of the same agent; 8th, the dissolution of the association as a partnership; 9th, the use of the pronouns "we" and "our" in the correspondence and books, and the use of a name with the addition of the words " & Co." Russia. There are in Russia collective partnerships, commandite partnerships, and anonymous partnerships. Spain. The Spanish law recognises three kinds of partnerships, viz., collective, commandite, and anonymous. Switzerland.-The Swiss cantons have very few laws on commercial partnerships. SECTION IV. PARTNERSHIP AS BETWEEN THE PARTIES AND TOWARDS THIRD PERSONS. BRITISH LAW. cessary to Holding property in comnon not suf Actual intention is requisite to constitute a partnership Intention nebetween the parties (a). Thus, no partnership would be held partnership. to exist from the simple fact that the parties possess or buy property in common. But if goods are purchased in common with a view to resell them, and to divide the profit and loss, then a partnership would be deemed to exist, whatever may be the ultimate agreement respecting them (a). ficient. Intention to resell in common for profit is sufficient. Participation of profit and loss as principal is partnership. Partnership would exist between the parties where each of them is to take a share of the profits indefinitely, and is to bear a proportion of the losses, with equal rights to act as principals. A community of interest in the profits and losses of the business. as principals is the essence of partnership (b). To be a partner Title to acone must have such an interest in the profits and losses as will entitle him to an account, and give him a specified lien or preference in payment over other creditors (c). There may be a partnership of profit and loss without establishing a partnership in the capital stock (d). A contract of partnership may be held to exist towards third persons, even though it may not exist as between the parties themselves; but wherever it exists among the parties themselves they are necessarily partners towards third persons. A contract of partnership would be presumed to exist as between the parties and between them and third persons wherever (a) Hazard v. Hazard, 1 Story, 371; Cope v. Eyre, 1 H. Bl. 37; Lake v. Gibson, 1 Eq. Ca. Abr. 290; Bone v. Pollard, 24 Beav. 283. (b) Ex parte Langdale, 2 Rose, 444; Pott v. Eyton, 3 C. B. 32; Heighoe v. Burge, 9 C. B. 431; Barry v. Nesham, 3 C. B. 641; Green v. Beesley, 2 Bing. (c) Katsch v. Schenk, 13 Jur. 668. count. Partnership in profit and not in stock. Partnership among two parties is partnership towards third persons. Partnership by a participation in the net profits whatever be their private agreement. there is a joint and mutual interest in the profits and losses, or a participation in the clear profits of the concern. So an agreement between two or more persons, having separate business concerns, to share in certain portions the profits of their respective concerns, would constitute a partnership as towards third persons, though it may have been provided by the agreement that none of the contracting parties shall be accountable for the acts or losses of the other, but each party for his own. A person holding himself out as a partner, so as to induce others to give credit on that assurance, would be liable as such, Participation though he may have no interest in the concern (a). But a person would be liable as a partner if he participates in the profits and loss, though his name has never appeared (b). Holding one self out as a partner. of profit as dormant partner. Executors carrying on trade become partners. When the executors of a deceased partner carry on trade for the benefit of the estate they become liable personally as copartners, though they have acted in their official capacity (c). Creditors car. So where creditors agree together to carry on the business of rying on the business be- the bankrupt estate for their joint benefit, and divide the net income of the business in rateable proportions among all the creditors, according to the amount of their respective debts, they would be liable as partners towards third persons (d). come partners. No partnership without intention or right to account. Nor by remuneration as gross earnings. Nor by a per centage of gross amount. No contract of partnership would exist as between the parties themselves or towards third persons where either of them receives a portion of the profits in lieu of, or in addition to, his wages of labour, or as a reward for services or skill as agent, clerk, or foreman, provided there has been no intention to contract partnership, nor any right has accrued to account, nor any property in the capital stock (e). So when a lighterman agreed to receive for his work as his remuneration half the ings of the lighter, that did not constitute a partnership (f). So the receipt of a percentage upon the gross amount of sales made to certain customers by the person who recommended such customers did not constitute him a partner as against gross earn (b) Lloyd v. Archbowle, 2 Taunt. 324; Ruppell v. Roberts, 4 Nev. & M. Drake v. Bekham, 11 M. &W. 315. (c) Wightman v. Townroe, 1M.&S.412. (d) Hickman v. Cox, 3 C.B.N.S. 523. (e) Hesketh v. Blanchard, 4 East, 144; Dry v. Boswell, 1 Camp. 329. (f) Dry v. Boswell, 1 Camp. 330. Nor by the mere sharing of profit with out interest. voyages. third persons (a). So seamen engaging on a whaling voyage, and receiving a certain proportion of the profits of the voyage in lieu of wages, were not thereby held as partners in the adventure (b). So persons engaged as dredgers in the oyster fisheries, having no In whaling interest in the boats nor in the fish caught, but merely receiving In oyster a share of the profits in lieu of wages, were not held as partners (c). fisheries. So the captain of a coal barge, employed to carry out and sell In collieries. coal on a remuneration for his services of two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery and the wages and pay of the crew, was not held to be a partner (d). So where a surgeon, in consideration for the Agreement assignment of the practice and of his being introduced to the geons. patients, agreed to allow to the retiring surgeon one moiety of the clear profits of the business, to be paid yearly, it was held that the stipulation as to profits did not create a partnership between the parties (e). among sur Broker re ceiving portion of profits as remunera tion. Agent receiv Where, however, there is an agreement to divide profits and loss as principals, there is partnership (f). So a broker employed Illustrations. to purchase goods under an agreement to receive a proportion of the profits arising from the sale, and to bear a proportion of the loss, was held as a partner towards third persons (g). So where a person joins another in the furtherance of an under- ing remunerataking, and contributes his work and labour towards the attain- tiondependent on profit. ment of the object, on the condition that the remuneration is to depend on the realisation of the profit, he would be held to be a partner (h). So where one agreed with another to convey by horse and cart the mail at a certain price per annum, and to pay his proportion of the expense of the cart, the money received for the carriage of parcels to be divided between the parties, and the damage occasioned by loss of parcels to be borne in equal portions, the agreement was held to constitute partnership (i). So where a party advance (a) Pott v. Eyton, 3 M. G. & Scott, 32; Stocker v. Brockelbank, 3 Mac. & G. 250; Andrews v. Pugh, 24 L. J. Ch. 58. (b) Wilkinson v. Frasier, 4 Esp. 18'; Rice v. Austin, 17 Mass. 197; Mair v. Glennie, 4 M. & S. 240. (c) Perrott v. Bryant, 2 Y. & Col. 61. (d) Hartley's case, Russ, & Ry. 141. money (e) Rawlinson v. Clarke, 15 M. & W. 292. (f) French v. Styrling, 2 C. B. N. S. 357. (g) Smith v. Watson, 3 D. & R. 751; (h) Addison on Contracts, p. 722. Labour to be remunerated by participation of profit. Lending money on con |