as claimed by any writer, 1. Sharing in profits. 2. Sharing in the losses, at least, to the extent of $4,000, the repayment of the whole of which depended upon the profits. 3. The right to inspect the books. 4. A common interest in the stock of the company. It is not the less a partnership that Judson was to transact all business, and make all grants in his own name." A secret or dormant partner is always intended to be unknown. He is not thereby the less a partner. It is urged that the respondent expressly refused, in the contract, to enter into any business or manufacture or partnership.' There is no such refusal. But the contract says simply, that such was not the object of the parties,' but only to make the parties joint owners of the patent. Yet the contract carefully provides for the business, and for the disposition of its profits. It continues Judson as the sole agent of the whole of the patent right at an agreed salary, payable from the profits, subject to an increase thereafter to be agreed upon whenever the $15,000 shall be realized, and the profits of the business shall authorize it.' What the precise business is as to the patent is nowhere stated, except incidentally, viz.: that, the profits arising from the sale of rights under the patent' are to be applied in a share for the defendant's benefit toward paying for an interest in the patent. Nor is the business to cease when the one-third interest in the patent is paid for, as provision is expressly reserved for an increase of the agent's salary at that time. Here, then, is express and particular provision for carrying on this business for the joint benefit of the parties defendants, for sharing in the profits, and, in a degree, in the losses; and the mere statement that its object is not for a partnership,' will not change the legal effect of the contract. It is plainly a partnership. as to third persons, even though expressly agreed that it should not be so between themselves. The best position that can be claimed by defendant Sears is that this is a special or limited partnership, as between the parties thereto. In such case it is general as to the public, or our statute on that subject would be superfluous. Story on Part. § 63, and cases cited. Judson, therefore, was the agent of the defendants in all matters touching the business of the patent. It cannot be held, as matter of law, that the hiring of this store by Judson was not

within and for the purpose of the partnership business. If it were for manufacturing and exhibiting specimens of the patent's work, with a view of selling the rights, and it was pertinent to that end, then it was within the partnership business, though it may not have been a wise mode of attaining the end. It may be possible that the steam power was outside of the business; and yet it would not then be proper to nonsuit, if the renting was appropriate as to the building or room, but if the general agent of the company thought it appropriate, and acted in good faith, it should be a plain case of excess of authority, or the company should be bound by his contract. It may be observed that the defendant, Sears, loaned this $4,000, 'to be used for the benefit of the patent,' and yet he paid a draft which he thought, as he testified, went for a payment on this same rent. He then, obviously, regarded this renting as appropriate to the business, or he would not, or should not, have consented to the misappropri ation of his money."

An agreement to share in the profits and losses of a business, in the absence of an express provision to the contrary, makes the parties copartners in fact. Brown v. Higginbotham, 5 Leigh (Va.), 58; Brown v. Tapscott, 6 M. & W. 122; French v. Roberts, 6 Mod. 96; Brown v. Cook, N. H. 64; Ex parte Church, 8 Bing. 471.

In an Alabama case (Emanuel v. Draughn, 14 Ala. 306), the parties entered into an arrangement by which the defendants were to furnish the plaintiff with goods at a profit of seven per cent, and a horse and cart in which to peddle the goods. The goods were to be sold by the plaintiff, and the profits were to be divided in the ratio of three-fifths to the defendants and two-fifths to the plaintiff. The court held that they were partners inter se.

The method in which the business is done is an important element in determining the intention of the parties; as, when one furnishes capital and the other labor, if each have the right to buy and sell, and the profits are divided, it has been held sufficient to establish a partnership in fact. Miller v. Price, 20 Wis. 120; Adams Bank v. Rice, 2 Allen (Mass.), 480; Pattison v. Blanchard, 6 Barb. (N. Y.) 541; Hunter v. Kock, 5 Wilson & S. App. Cas. 639. So when the capital is advanced by one as a

cover the amount of a loss sustained by the sale of some oil under the follow ing circumstances: The defendants, Eyre for himself and partners (who were Atkinson and Walton), general merchants, Hattersley for himself and Stephens, who were oil-merchants, and Pugh for himself and son, who were also oil-merchants, agreed to purchase jointly as much oil as they could procure, on a prospect that the price of that commodity would rise. That Eyre should be the ostensible buyer, and the others share in his purchase at the same price which he might give. Hattersley & Co. were to have one-fourth, Pugh one-fourth, and Eyre & Co. the remaining moiety. In consequence of this agreement, Eyre alone gave gen. eral orders to a broker to purchase any quantity of oil which might offer. The plaintiffs accordingly contracted with Eyre to sell the oil in question. The contract with them was signed by Eyre for himself and Co.; and by way of collateral security two bills of exchange were deposited in the hands of the plaintiffs, one of which was accepted by the defendants Eyre, Atkinson, and Walton. The oil not having been paid for nor taken away, the plaintiffs, in pursuance of a power they had in that contingency, authorized the broker to sell it. The deficiency on this resale was very great; the bill of exchange accepted by the defendants was presented to them for payment, and refused; and before the action was brought, Eyre & Co. had become bankrupts. The question was, whether or not the other defendants, Hattersley, Stephens and Pugh, were liable for the amount of the loss sustained by the plaintiffs.

At the trial, it was held that, as the defendants did not appear to have been jointly concerned, further than the purchase of the oil, they had not such a joint interest in the profit and loss as the law made necessary to a partnership. The jury accordingly found a verdict for the defendants; and the Court of Common Pleas, with the exception of Wilson, J., held the verdict to be right. In that case, it will be observed that there was no communication between the buyers as to the profit or loss. Each party was to have a distinct share of the whole, the one to

have no interference with the share of the other, but each to manage his own share as he judged best. It was merely a sub-contract; Pugh, Hattersley, and Stephens were not partners, inasmuch as they were interested in the purchase of the commodity, and not in the subsequent disposition of it. And being an action on a contract of sale, the vendor could have no remedy against any person with whom he had not contracted, unless there was a partnership, in which case all the partners would be liable as one individual. A secret partnership can be no consideration to the vendor, though, for reasons of policy and general expedience, the law is positive with respect to the secret partner, that when discovered he shall be liable to the whole extent.

"An agreement to share profits," says Mr. Lindley in his work on Partnership, vol. 1, p. 14, "nothing being said about losses amounts prima facie to an agreement to share losses, also Greenham v. Gray, 4 Ir. C. L. 501; Dry v. Boswell, 1 Camp. 330; Heyhoe v. Burge, 9 C. B. 440, per Parke, B.; 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 an agreement to share profits is prima facie an agreement for a partnership; and accordingly it is 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. Wood v. Valette, 7 Ohio St. 172; Sheridan v. Medara, 10 N. J. Eq. 469; Cushman v. Bailey, 1 Hill (N. Ÿ.) 526; Motley v. Jones, 3 Ired. (N. C.) Eq. 144; Bromley v. Elliott, 38 N. H. 287; Leggett v. Hyde, 58 N. Y. 272; Manhattan Brass Co. v. Sears, 45 N. Y. 797; Mason v. Partridge, 66 id. 633; Brigham v. Clark, 100 Mass. 430; Ward v. Beath, 23 Wis. 254; Campbell v. Dent, 54 Mo. 325; Bocklin v. Hardenburgh, 37 N. Y. Superior Ct. 110; Benedict v. Hittrick, 35 id. 405.

"Indeed, it has often been said, that community of profit is the test of partnership. Heyhoe v. Burge, 9 C. B. 446, E. C. L. R. 67; Fox v. Clifton, 9 Bing. 799; Ex parte Langdale, 18 Ves. 300.

This, however, is scarcely accurate. It is undoubtedly true that persons who share profits are liable as if they were partners, and it is also true that persons who are so liable are prima facie partners inter se, Peacock v. Peacock, 2 Campb. 46, but it cannot be said that persons who share profits are necessarily and inevitably partners in the proper sense of the word, Whether persons are partners or not is a question of intention, to be decided by a consider. ation of the whole agreement into which they have entered, and ought not to be made to turn on one or two only of the clauses in it. A good instance of this is afforded by the Irish case of Barklie v.. Scott, 1 Huds. & Br. 83. Compare Reid's Case, 24 Beav. 318, where the father who had transferred shares into his infant son's name was held a contributory. There a father paid a sum of money as his infant son's share of the capital of a partnership, and it was agreed that during the son's minority the profits should be accounted for to the father; it was held that the father was not himself a partner, that clearly not being the intention of the parties to the agreement. The case of Rawlinson v. Clarke and Stocker v. Brocklebank (compare Harrington v. Churchyard, 8 W. R. 302, a somewhat similar case), may also be referred to as illustrating the principle now in question.

Rawlinson v. Clarke (15 M. & W. 292) was as follows: Clarke was a surgeon, and agreed to sell his practice, and drugs and stock in trade to Rawlinson, who was to pay for them partly in cash down and partly in cash at the end of a year. During this year Clarke agreed to carry on his practice as usual, and to introduce Rawlinson to the patients; and Rawlinson agreed to allow Clarke during this one year one-half of the clear profits of the concern, to be paid at the expiration of the year. It was contended that the above agreement rendered the plaintiff and the defendant partners for a year; but it was held that the whole agreement showed only that Clarke was to receive a salary for the services he was to afford to Rawlin son in helping him to continue the business.

In Stocker v. Brocklebank (3 M. & G. 250, E. C. L. R. 42. In Withington v. Herring, 3 Moo. & P. 30, an agent paid by a salary and a share in the profits was thought to be a partner, but the

The shares must be joint,

question was not decided), the plaintiff was a patentee and the defendants were partners, and had obtained a license to work the plaintiff's patent. An agree. ment was entered into between the plaintiff and the defendants to the effect that the plaintiff would serve them as manager of their partnership business, and that he should receive by way of a salary such a sum as should equal £40 per cent of the net profits of the business, and it was expressly stipulated that there should be no partnership between the plaintiff and the defendants. Disputes, however, arising, the plaintiff contended that under the agreement he was, in fact, a partner with the defendants. But it was held that he was not; the Lord Chancellor saying," The contract is in express terms one of hiring and service, and the question thereof is, whether in the absence of every incident of partnership, except that of sharing in the profits, that circumstance constitutes a partnership; and I am of opinion, upon principle and authority, that it does not, There is nothing in common between the parties, neither capital, liability, nor participation in loss. The plaintiff has neither the liability, nor the authority, nor the interest of a partner; he could not be joined as a plaintiff in any legal proceeding to assert the rights of the partnership, nor could he be made defendant in respect of any partnership liability; and, as before stated, the contract throughout speaks of service, and requires him to obey directions, at the peril of a determination of the contract. No principle was stated during the argument upon which the contract was contended to inure as a partnership, but the fact was frequently adverted to that the plaintiff was entitled to forty per cent upon the profits before the firm, which consisted of three persons at first, and afterward of two, were entitled to participate. Now, whether the plaintiff was to be paid one per cent upon the profits or forty would make no difference in principle, and if the forty per cent was but a mode of measuring the amount of wages, salary, or remuneration, I do not think that its being contingent upon profits has any effect in creating a partnership."

In Rawlinson v. Clarke, Stocker v. Brocklebank, and Geddes v. Wallace there was no capital or stock common to those who shared the profits. If there