Ellsworth and Others v. Pomeroy and Others. principal against loss by the business, or to guarantee to him a certain profit in it. In a controversy between the parties or their representatives, as in this case, it is purely a question of intention, to be deduced from the contract itself. In everything but the ownership of the property, the express stipulations of the contract create elements which perhaps might, inter sese, constitute a partnership, and yet the same stipulations are also consistent with the existence of the relation of principal and agent merely. See Story on Part. § 23. But there are other stipulations which seem to us to evince, quite satisfactorily, a definite intention to create an agency merely. In the first place, the vesting of the legal title to the lands in Pomeroy, exclusively, is a circumstance of much weight. He resided in a distant state, remote from the lands and from the market in which they would be sold, while Ellsworth lived near them, and he alone was charged with the duty of selling them. If both were sufficiently responsible, so that there would be no risk of loss by putting the title in either, why thus take care to vest it where it would be most inconvenient in obtaining prompt conveyances to purchasers, unless the parties regarded the land as Pomeroy's own property? Then, also, if a partnership was intended, why stipulate, in the first contract, that Ellsworth should "be the sole agent for selling," and "should take the care and agency of said lands as his attorney"? The language would be inapt. The words of the second contract are still more striking, and furnish a strong indication of what the parties understood by the first. "It is agreed that said Ellsworth shall take the agency of said lands in said White county, in all respects on the same terms he has those in Benton county; the agency to commence and end at the same time." This is no doubtful phraseology. Such language, though it might be known to a lawyer, of itself, not absolutely to preclude the idea of a partnership, would not probably have been employed by him. Non-professional draughtsmen would even be less likely to use such terms in a contract intended to be one of partnership. It is quite Ellsworth and Others v. Pomeroy and Others. evident, from a reading of these instruments, that they did not come from a professional pen. If not a partnership, then a community of interest in the property was not created by the contract. Upon the happening of a condition subsequently to be performed by Ellsworth, to-wit: the sale by him of sufficient lands to produce a fund in which he might be entitled to share, it might be that equity would, for his protection, if necessary to relieve him from the consequences of a refusal by Pomeroy to allow him to go on, lay its hand upon the specific fund, or turn the lands remaining unsold into money, and give to him his portion thereof. But the condition never happened, and never can, the time having expired, and of course the right which depended upon its performance never was called into existence. Any breach of it, therefore, by Pomeroy, or those representing him, can only be remedied by giving damages therefor. Obviously, the contracts alone created no community of interest in the lands; nor was it contemplated that there ever should be such community of interest. Ellsworth was to sell the whole, and share a portion of the profits. Mere appreciation in the value of property, without realizing the cash from sales, was not to go to his benefit by any stipulation of the parties. It would be an important matter in ascertaining his damages for a breach by Pomeroy of the contract; but there could be no specific thing, a share of which he could claim, until profits were made by sales. It does not even appear by the complaint that he could, within the time limited by the agreement, have sold the lands so as to realize anything for himself, nor even that he intended to make the effort. Mere negotiations pending between the parties at Pomeroy's death could, of course, effect no change in the previous agreement; nor could an agreement with one of the trustees to whom the lands were devised. Nor do we deem the conclusion which we have reached at all in conflict with anything adjudged in Olcott v. Wing, 4 McL. 15, or Watkinson Hudspeth v. Allen and Another. v. Ellsworth, 27 Conn., 209. In the latter case there was no such question involved as determines the one before us. In the former, a partnership was held to exist, but the contract was very different from the one in this case. The judgment is affirmed, with costs. HUDSPETH V. ALLEN and Another. NOMINAL DAMAGES.-NEW TRIAL.-An omission to assess nominal damages, when there is a mere technical right to recover, is no ground for a new trial. DECLARATIONS OF A SERVANT.-A contract for the erection of a building provided that the work should be done under the control and superintendence of an architect employed by the owner. Held, that the declarations of the architect, made while in the performance of his duty under the contract, were admissible in evidence on behalf of the contractor. PRACTICE. EVIDENCE.-When a witness has been examined by the plaintiff in chief, he cannot, after the defendant has offered evidence to contradict what the witness has said, recall the witness simply to repeat what he said in his first examination. APPEAL from the Vanderburgh Circuit Court. GREGORY, C. J.-Hudspeth sued Allen and Clark for alleged breaches of a contract for the construction of a tobacco warehouse. The appellees agreed to furnish all the materials and labor necessary in the erection of a warehouse, to be built at Booneville, for the plaintiff, according to plans and specifications executed and furnished by Mursinna & Boyd, architects, and under their direction and superintendence. The building was to be completed Hudspeth v. Allen and Another. on a day specified. It was stipulated that any part of the work which, in the judgment of the architects of the owner, was not properly executed, was to be taken down and rebuilt, together with all the work and materials thereby affected, at the expense of the contractors. If the contractors neglected or refused to take down and rebuild the work so disapproved within ten days after being notified, the owner or architects were to cause it to be done by some other tradesman. The defendants were to receive a specified sum, to be paid weekly on the architects' estimate, not to exceed seventy-five per cent. on the amount of materials and labor furnished each week during the progress of the work, and the balance was to be due, and a final settlement made between the parties, when the contract was fulfilled, and the building, with all its appurtenances, was completely finished, to the entire satisfaction of the owner and the architects. The breaches complained of are, 1. That the defendants did not furnish for the building the best material, but furnished inferior material, which they put into the building, to the damage of the plaintiff $500. 2. That the defendants did not perform the work upon the building in a skillful and workmanlike manner, but, on the contrary, did it in a loose, careless and unworkmanlike manner, to the damage of the plaintiff $5,000. 3. That the defendants failed to have the warehouse completely finished and ready for occupation by the time specified in the contract, but, on the contrary, did not complete the same until long afterwards, to-wit, three months, to the damage of the plaintiff $500. The defendants answered, among other things, the general denial, accord and satisfaction and counter-claim, upon which issues were joined. Trial by jury, motion for a new trial overruled, and judgment. The first error assigned is that the court below erred in overruling the plaintiff's motion for a new trial. We have carefully reviewed the evidence, and think that the jury were warranted in finding that the plaintiff had not sustained any Hudspeth v. Allen and Another. substantial damage by the alleged breaches of the contract. An omission to assess nominal damages, where there is a mere technical right to recover, is no ground for a new trial. Patton v. Hamilton, 12 Ind. 256; Jennings v. Loring, 5 Ind. 250. The testimony shows that the plaintiff paid the defendants the entire contract price for building the warehouse, and that neither he nor the architects at any time required the defendants to take down and rebuild any portion of the work. It therefore cannot be said that there is no evidence from which the jury might have arrived at the conclusion that the building had been completed and accepted by the owner and the architects under the contract. It is claimed that the court below erred in allowing evidence of the declarations of Mursinna & Boyd in reference to a change in the third story floor and the shed roof.. We deem the testimony immaterial, under the breaches alleged. It is not claimed that any portion of the work was not done according to the plan and specifications, but that it was not done in a workmanlike manner and within the time agreed. The declarations made by the architects, during the performance of their duties under the contract, as to the quality of the materials being used in the building, were, in our opinion, properly admitted to go to the jury by the court below. It is urged that the court below erred in refusing evidence to contradict the statement of the witness Allen as to what the plaintiff had said about the declarations of Mursinna in reference to the material used in the shed floor. We do not see that the rejected evidence was of any importance to the plaintiff's case. It is claimed that the court below erred in refusing to allow the plaintiff to ask the witness Kelley "how many braces in the building were loose or too short?" The witness had been introduced and examined by the plaintiff, and had testified on the subject embraced in the question. The defendants had introduced witnesses to contradict the |