In the ordinary disputed case, the course of procedure will be for the court to instruct the jury as to the considerations which determine partnership and the facts which they must find in order to establish one, and then to leave the whole question of the existence of a partnership and the resulting liability to their determination.

§ 65. Means of proof.-As between the alleged partners themselves, the existence of the partnership may be proved by the partnership articles, if any; if not, by informal writings, letters, the partnership books, the conduct and admissions of the parties, or by any other matters tending to prove the fact in controversy, and brought home to the party to be charged.25

As to third persons, the existence of the partnership and the persons who compose it may be proved by conduct, admissions or other kinds of parol evidence, even though there were partnership articles.26

The testimony of the parties themselves as to the facts is, under modern rules, admissible either to prove or disprove the alleged partnership.27

It may also be proved by the conduct or admissions of the parties sought to be charged; 28 but the acts or admissions of

Smith (1880), 13 R. I. 27, 43 Am. Rep. 3; Klosterman V. Hayes (1889), 17 Oreg. 325, 20 Pac. 426; Webster v. Clark (1894), 34 Fla. 637, 16 So. 601, 43 Am. St. R. 217, 27 L. R. A. 126; Rider v. Hammell (1901), 63 Kan. 733, 66 Pac. 1026; Bradley v. Ely (1900), 24 Ind. App. 2, 56 N. E. 44, 79 Am. St. R. 251, Gilm. Cas. 10; McAlpine v. Millen (1908), 104 Minn. 289, 116 N. W. 583.

25 See 2 Greenleaf on Evidence, 8 477 et seq.; Lindley on Partnership (Ewell's 2d Am. ed.), vol. I, p. 80 et seq.; McMullan v. Mackenzie (1849), 2 Greene (Iowa), 368. 261 Lindley on Partnership (Ew

ell's 2d Am. ed.), 87; 2 Greenleaf, § 479.

27 First National Bank v. Conway (1886), 67 Wis. 210, 30 N. W. 215.

Their testimony as to the facts is competent but their conclusions as to whether there was a partnership are not conclusive. Wilson v. Todhunter (1918), Ark. - 207 S. W. 221.

28 Reed v. Cremer (1886), 111 Pa. 482, 5 Atl. 237, 56 Am. Rep. 295, where it is said that the partnership may be established by the several admissions of all those who were alleged to compose it, or by the admissions of one and the acts and declarations of the others. But

one person are not admissible to prove another to be a partner, unless the latter is in some way shown to be responsible for them or to have acquiesced in them.29 The existence of the partnership, or who were the persons composing it, cannot be proved by general reputation, rumor or hearsay.30

In seeking to establish partnership from acts and conduct, a wide range of evidence is allowed to put before the jury all the facts and circumstances relating to the connection of the alleged partner with the affair, and the method of transacting the business.

§ 66. Burden of proof.-The burden of proving the existence of the partnership and who were the partners composing it rests usually upon the party alleging it.31 Where, however, its existence is shown or admitted, a presumption of its continuance ordinarily arises which casts upon the party alleging its termination the burden of showing that fact, including the giving of proper notice where that is necessary.32

the facts relied upon must be those which the party sought to be held caused or permitted to appear. Morgan v. Farrel (1890), 58 Conn. 413, 20 Atl. 614, 18 Am. St. R. 282, Mechem's Cas. 171. See, also, Boosalis v. Stevenson (1895), 62 Minn. 193, 64 N. W. 380; McDonald v. Campbell (1905), 96 Minn. 87, 104 N. W. 760.

29 The declarations or admissions of one person that another is his partner are not admissible to prove that fact against the latter person, unless he has in some way authorized or assented to such declarations. Vanderhurst V. De Witt (1892), 95 Cal. 57, 30 Pac. 94, 20 L. R. A. 595; Dutton v. Woodman (1852), 9 Cush. (Mass.) 255, 57 Am. Dec. 46; Grafton Bank v.

Moore (1842), 13 N. H. 99, 38 Am. Dec. 478; Franklin V. Hoadley (1911), 145 N. Y. App. Div. 228, 130 N. Y. Supp. 47.

30 Brown v. Crandall (1835), 11 Conn. 92; Bowen v. Rutherford (1871), 60 Ill. 41, 14 Am. Rep. 25; Cook v. Slate Co. (1880), 36 Ohio St. 135, 38 Am. Rep. 568; Potter v. Greene (1858), 9 Gray (Mass.), 309, 69 Am. Dec. 290.

31 See Lieb v. Craddock (1888), 87 Ky. 525, 9 S. W. 838; Dunham v. Loverock (1893), 158 Pa. 197, 27 Atl. 990, 38 Am. St. R. 838, Mechem's Cas. 6; In re Gibbs' Estate (1893), 157 Pa. 59, 27 Atl. 383, 22 L. R. A. 276, Gilm. Cas. 91; Smith v. Moynihan (1872), 44 Cal. 53.

32 See post, § 393.

§ 67. How question arises.-The question as to the existence of a partnership between given individuals may arise in two classes of cases:

1. Where the parties themselves allege that they intended partnership.

2. Where the parties or some of them allege that they did not intend partnership, and third persons, usually creditors, are seeking to establish it against them.

The latter is, by far, the more common case.

§ 68. Partnerships inter sese and as to third persons.—It is, in general, true, as has been seen,1 that as between the parties to the alleged relation there can be no partnership if they did not intend one, and that as to third persons there can be no partnership if there was none as between the alleged partners themselves. Notwithstanding this general rule, it is equally true, as will be hereafter seen, that there are two apparent exceptions to it:

1. Persons may be held, notwithstanding a contrary intention, to have made a contract which in law constitutes them partners as between themselves; and

2. A person who is not actually a partner may be held liable to third persons as though he were a partner where he has so conducted himself as to reasonably induce such third persons to rely upon the assumption that he was a partner.

It will be obvious that these two cases are very different; in the first all the parties are held to be partners as between themselves, while in the second a person may be held liable as though he were a partner when in fact, between him and the persons with whom he is thus assumed to be a partner, no actual partnership existed. The first form, or the partnership inter sese, is therefore the only true partnership. This has sometimes led to a classification into, 1, true partnerships, and 2, quasi-partnerships, though the latter are not partnerships at all. The proper classification is into, 1, true partnerships with their resulting liabilities, and, 2, liability as a partner where no actual partnership exists.

I. OF TRUE PARTNERSHIPS.

§ 69. True partnerships, how classified. It will be evident that true partnerships also may be divided into two classes: 1. 1 See ante, § 59.

Where a partnership was expressly intended; and 2. Where the parties did not expressly intend to become partners, but the law holds that the contract which they intentionally made does create a partnership between them, and their relation thus becomes, indirectly, in law an intentional partnership, because it is said that the law always presumes that parties intended the legal result of their intentional acts. These two classes will be separately considered.

§ 70. I. Of partnerships expressly intended.-Cases of this nature can ordinarily occasion but little difficulty. If it be admitted that the parties intended to be partners, their intention can rarely fail of effect. Cases, however, are occasionally found in which the parties, intending to create a partnership and expressly naming their relation such, have still been held not to have created one, because they had failed to attach to their relation the necessary incidents of partnership; as, for example, where their contract leaves them without any community of interest in the business or profits.2

f

It may also be that an instrument designed to constitute partnership articles is so defectively drawn as to create some other relation, as a co-ownership or a corporation; but unless some other distinct relation is thus expressly created, or some indispensable element is omitted, persons who have intended to be partners, and who have acted as such, will be deemed to be partners notwithstanding defective instruments.

2 Thus, in Sailors v. Nixon-Jones Printing Co. (1886), 20 Ill. App. 509, Mechem's Cas. 85, it is said: "The fact that the parties to such relation themselves call it a partnership will not make it so. Where the question of partnership is to be determined from a contract between the parties to it, the relation must be found from the terms and provisions of the contract, and even though parties intend to become partners, yet, if they so frame the terms and provisions of their con

tract as to leave them without any community of interest in the business or profits, they are not partners in fact or in law. Parsons on Partnership, 91. A partnership inter se must result from the intention of the parties as expressed in the contract, and they cannot be made to assume toward each other a relation which they have expressly contracted not to assume. The terms of the agreement, where there is one, fixes the real status of the parties toward each other."