erty until September 23, 1903, but failed to find any ore, and was compelled, for the want of funds, to abandon the work and to throw up his lease. It appears that the expenses of working and operating the mines during the months of August and September were not paid.

The action was tried to a jury, who returned a verdict in favor of plaintiff and against A. Brossard, and against plaintiff and in favor of the defendants Jacob West and R. A. Caldwell, "no cause of action." The court directed a verdict in favor of Mattie B. Hanson and J. M. Blair. The defendants A. F. Caldwell and O. A. Caldwell were not served with summons, and did not appear in the action. This appeal is prosecuted against the defendants, Jacob West and R. A. Caldwell only.

Appellant bases his right to recover from respondents on the ground that they were copartners with defendant Brossard in the said mining operations, and that the services in question were rendered for the copartnership. The court instructed the jury that the written agreement between A. Brossard and the other defendants did not create the relationship of copartners between them. Appellant assigns the giving of this instruction as error. It might be well to observe that respondents concede that the services referred to were rendered, and that the sum sued for is justly due appellant. Respondents, however, contend that Brossard alone was liable for the debt. The only question, therefore, presented by this appeal is, did the relationship of copartners exist between Brossard and the respondents at the time the labor in question was performed? A partnership is defined to be

"A business relation between two or more persons arising out of a contract by which they agree to unite their property, credit, skill, or influence in some business so that they may have a community of interest in such business, and usually divide the profits and losses between themselves in fixed proportions." (2 Page on Contracts, 937.)

In the case of Beecher v. Bush, 45 Mich. 188, 7 N. W. 785, 40 Am. Rep. 465, Judge Cooley, in the course of an able and elaborate opinion, says that a partnership is "a community of interests in some lawful commerce or business, for the conduct

of which the parties are mutually principals of, and agents for, each other."

Some of the elements necessary to a partnership are wanting in the agreement entered into between Brossard and his codefendants. There was no evidence introduced that tended to show that it was the intention of the parties to the agreement to form a partnership, nor do I think such intention can be reasonably inferred from the terms of the contract, espec ially when read and construed in connection with the lease. The agreement when thus read shows conclusively that neither respondents nor any of Brossard's other codefendants acquired any interest whatever in the lease. The consideration, and the only consideration received by the parties for the money paid to Brossard under the contract, was his promise that he would, in case the venture proved a financial success, refund the money, deed to each of the parties a specified interest in the property, and pay to each a certain proportion of the fund provided for by the terms of his lease. Brossard was in no way subject to the control or dictation of respondents and the other defendants respecting the employment of laborers at the mine and the expenditure of the money in purchasing machinery and supplies necessary to the successful prosecution of the work under the lease. And neither respondents nor any of Brossard's other codefendants had any authority to contract for or to purchase supplies to be used in operating the mines and to pay for the same by drawing against the funds which they had paid to Brossard. Their contract gave them no right whatever to direct how the money should be expended, or in what particular way the work should be prosecuted. They had no right to even go upon the property and enter the underground workings thereof without Brossard's consent. Nor could they compel him to suspend operations when the money paid him was exhausted. And they could not have prevented him from incurring the indebtedness for which they are sought to be held liable in this action. In fact, they had no more legal right under the contract to direct how the money should be expended, or how the work under the lease should be performed or prosecuted, than if they were not parties to the

agreement, but were strangers to the entire transaction. True it is said in the opinion written by Mr. Justice Straup that "plaintiff (appellant) also gave evidence tending to show that he was employed at the instance and request of Brossard and R. A. Caldwell." I do not so construe plaintiff's testimony when read in its entirety on this point. He said: "I know A. Brossard. Became acquainted with him in 1902. He

asked if I was an engineer, and if I would go to work for him. I also know R. A. Caldwell. Became acquainted with him about June or July, 1903. He (Caldwell) came over to the mine where I was at work (referring to the mine covered by the lease)." Again he says: "I was employed by A. Brossard to work on the Wakefield group of mines about January 10, 1903." On cross-examination he stated: "I did not nor do I know now who are the owners of the Wakefield group of mining claims, but understood that I was employed by A. Brossard, R. A. Caldwell, and others furnishing the money for the same. From R. A. Caldwell I received my information at different times between the months of July and September, 1903 (this testimony was denied by Caldwell); from Mrs. A. Brossard in the month of July, 1903." He named several other persons from whom he acquired this information, none of whom are parties to the suit. Therefore I think his own evidence conclusively shows that he was not employed at the instance of R. A. Caldwell. He had been at work for Brossard five or six months before he met or became acquainted with Caldwell. The record further shows that the business was all done by Brossard in his own name. Another significant fact is that respondent's and Brossard's other codefendants inade their last payment June 30, 1903. Soon after this payment was made R. A. Caldwell came to Tuscarora and examined the property covered by the lease. He went into the mine twice and examined the underground workings. The evidence introduced on behalf of appellant shows that Caldwell stated to one Hobson, who was employed at the mine as timekeeper and bookkeeper, that he (Caldwell) "had put up money for the development of the Wakefield group of mines, and that he had put up

his last dollar for such work." This alleged conversation took place long before the indebtedness involved in this case was incurred. Notwithstanding Caldwell remained continuously in Tuscarora until after Brossard had abandoned his work and left the camp, neither appellant nor any of the other employees at the mine suggested to him that they intended to hold him responsible for their wages. In fact the only demand ever made on respondents by appellants was the bringing of this action.

The obligations created by the agreement were not joint, as appellant seems to contend, but several; that is, the amount that each of Brossard's codefendants was to contribute, and the interest each party was to receive in the property, was fixed by the agreement. Neither of Brossard's codefendants acquired any right or interest in the contribution of any other defendant, nor in any of the benefits to be derived therefrom, as stated by counsel for respondents in their brief, "the relationship among the defendants was as separate and several in character as if each of the defendants, with the exception of Brossard, had entered into a separate and distinct contract with him." When one of the parties to the agreement paid the amount he had covenanted to pay, the contract on his part was fully performed, and neither Brossard nor any of the other defendants had any further claim against him. And on the other hand, when the money advanced by the parties was all spent, and they failed to further contribute, Brossard's obligations to them under the agreement likewise terminated, and the contract gave him no authority to continue the work on the credit of his codefendants. That such was the legal effect of the agreement is plain, because, as stated, Brossard's right to the possession of the property and to carry on the development work was derived from his lease from Fannof, and in no way depended upon his agreement with respondents. This lease he could not assign, neither could he sublet the property covered by it without the written consent of Fannof. By the terms of the lease Brossard was bound to keep a certain number of men at work on the property during the life of the lease, and when steam power was used to run the machinery of the mines Fan

nof was to be employed as chief or head engineer. These terms and conditions were fully understood by the other defendants when they entered into the contract in question with Brossard. They knew that under the terms of the lease the voluntary suspension of the work for any appreciable length of time gave Fannof the right to terminate the lease, and to repossess the property. Therefore it necessarily follows that Brossard, in operating the mines under the lease, could not, in any sense, have been the representative or agent of the defendants, for as I have stated, they had no interest whatever in the lease. And furthermore Brossard could not, without the written consent of Fannof, which was not obtained, assign an interest to them.

The doctrine is fundamental that in a partnership each partner is an agent of his copartners in all matters pertaining to the affairs of the partnership, and has implied authority to bind the firm in all matters within the scope of the business in which it was engaged. This principle is well illustrated by Mr. Parsons in his work on Partnership, section 83, in the following language:

"The principle which lies at the foundation of the partners' liability is that every partner has full and absolute authority to bind all the partners by his acts or contracts, in relation to the business of the firm, in the same manner and to the same extent as if he held full powers of attorney from all the members. No principle is better established than this. It rests, not only on universal authority, but on obvious reason and necessity; because, if the rule were otherwise, a very large proportion of the advantages and facilities for which partnerships are formed would be lost."

Tested by this doctrine, which is undoubtedly founded upon correct principles, it is plain that the agreement entered into by Brossard and the other defendants did not create the relationship of partners between them. (Beecher v. Bush, supra; Loomis v. Marshall, 12 Conn. 69, 30 Am. Dec. 596.)

By an examination of the cases cited in the opinion written by Mr. Justice Straup it will be seen that they adhere to and declare this same doctrine. If, however, the construction contended for by appellant of the contract under consideration.