If we regard the agreement itself, as set forth in the auditor's report, it is clearly a partnership. * * The parties all furnish a share of the capital-Whitcomb one-half, Lewis one-quarter, the Duryeas one-quarter. They jointly own the property when purchased. It is purchased in order to be sold again for their joint and mutual benefit, thereby negating the idea of separate control and disposition of their interests in the property purchased and of separate interests in the proceeds. Each is to share. in the final profit or loss. At the close of the season the profits or losses are to be divided, to Whitcomb one-half, to Lewis a quarter, to the plaintiffs a quarter. Each is to aid in selling, and to contribute his aid, skill, and knowledge to get the highest price. The fact that each was to be accountable for his own sales amounts only to this: That each should sell for cash. If either did not, he was to be accountable for his sale as cash. The proceeds of the sales by each would belong to them jointly, not severally. This provision is as consistent with an agreement for a partnership as with any other. Noyes v. Cushman, 25 Vt. 390. So that Whitcomb was to have the control of the potatoes, and to run them to the best market, taking the advice of Lewis and the Duryeas on the subject, is, when we consider where the parties resided, where the potatoes were to be bought, and to what markets they might be sent, and that Whitcomb was to buy them, as consistent with a contract of partnership as with any other. I. This agreement does not belong to the class of cases where the parties are jointly interested in certain proportions in the property purchased, but not in the final profits or losses, where each of the part owners has the power of separate disposition of his interest. Such is the case of Coope v. Eyre, 1 H. Bl. 37, a leading illustration of the class. II. It is not of the class where a party receives a portion of the profits as a compensation for his labor as an agent or servant. Each furnished a portion of the capital. Each was a part owner of the property when purchased, and of the proceeds when sold. Neither could be said to be the servant or agent of the other. An agent who receives a share of the profits as a compensation for his services is not expected to share in losses. If there are no profits, he loses his labor or wages; but he loses no more, though there are further losses to be borne by the partners. Of this class is Kellogg v. Griswold, 12 Vt. 291, and Mason v. Potter, 26 Vt. 722. III. Nor is it a case where a share of the gross or net earnings is to be paid as a compensation for the use of capital, or as rent, and where the party receiving such compensation has no interest in the business, the property, and the proceeds, but only a right of action against the other parties. Here the parties jointly contributed capital, labor, and skill-were joint owners of the property from the time of its purchase till the final division of profits or loss. No severance of their interests could be had. No ascertainment of their respective shares or interests could be made till a final accounting. They must have relied on the property and its proceeds to secure to each his final share, no matter by whom the property might be sold, or its proceeds held. Hence the cases of Tobias v. Blin, 21 Vt. 544, Bowman et al. v. Bailey, 10 Vt. 170, and Ambler v. Bradley, 6 Vt. 119, do not apply. Of the same class are Denny v. Cabot, 6 Metc. (Mass.) 92, Holmes v. R. R. Corp., 5 Gray (Mass.) 58, Loomis v. Marshall, 12 Conn. 69, 30 Am. Dec. 596, and various other cases cited by counsel. It is said, however, that the auditor finds that the parties did not intend to form a partnership, and that such intention must govern. It is with contracts of partnership, as with all other contracts, that as between the parties to them their intention must govern. Hence an express stipulation in a contract that the parties thereto shall not thereby become partners is binding and of great significance in giving construction to the instrument, especially if the terms are doubtful, or susceptible of more than one meaning. 1. It is to be noted that in this case there was no such express stipulation. The auditor's report says: "At the time of the arrangement in New York, August 20, 1854, nothing was said about a partnership, and neither of the parties at that time supposed they were forming a partnership, or intended to form a partnership." As nothing was said about a partnership, the parties could not have stipulated that their contract should not create one. 2. The report states what was the arrangement of August 20, 1854. That was a contract for a partnership. If their contract was for a partnership by necessary legal construction (which we have found that it was), and they intended to make the contract (and this appears from the report), the legal effect of their contract could not be varied by their not supposing it to be what it was. The further statement in the report that they did not intend to form a partnership seems inconsistent with the other facts. One is at a loss to perceive how the auditor could discover such an intention, when nothing was said about a partnership, and when the contract which they made was a partnership. Probably the fair construction of the report is that the parties were not aware of the legal extent and obligation of the contract into which they entered. As the contract imports a partnership, we must hold, in the absence of any express stipulation and of any other circumstances to show the contrary, that they intended to create the relation which the contract expresses. The result is that the judgment of the county court is reversed, and judgment rendered for the defendant to recover his costs.1 1 "It was said, and said with considerable force, that they never intended to be partners. What they did not intend to do was to incur the liabilities SECTION 3.-TESTS OF INTENTION. I. SHARING PROFITS-FORMER DOCTRINE. GRACE v. SMITH. (Court of Common Pleas, 1775. 2 W. Bl. 998.) DE GREY, C. J., reported: That this was an action brought against Smith alone as a secret partner with one Robinson (vide Abbot and` Smith), to whom the goods were delivered, and who became bankrupt in 1770. That on the 30th of March, 1767, Smith and Robinson entered into partnership for seven years, but in the November afterwards, some disputes arising, they agreed to dissolve the partnership. The articles were not canceled, but the dissolution was open and notorious, and was notified to the public on the 17th of November, 1767. The terms of the dissolution were that all the stock in trade and debts due to the partnership should be carried to the account of Robinson only; that Smith was to have back £5,200, which he brought into the trade, and £1,000 for the profits then accrued since the commencement of the partnership; that Smith was to lend Robinson £4,000, part of this £5,200, or let it remain in his hands for seven years, at 5 per cent. interest and an annuity of £300 per annum for the same seven years for all of which Robinson gave bond to Smith. In June, 1768, Robinson advanced to Smith £600 for two years' payment of the annuity and other sums by way of interest and gratuities, and other large sums at different times, to enable him to pay the partnership debts; Smith having agreed to receive all that was due to the partnership, and to pay its debts, but at the hazard of Robinson. That on the 1st of August, 1768, the demands of Smith were all liquidated and consolidated into one, viz., £5,200 due to him on the dissolution of the of partners. If intending to be a partner is intending to take the profits. then they did intend to be partners. If intending to take the profits and have the business carried on for their benefit was intending to be partners, they did intend to be partners. If intending to see that the money was ap plied for that purpose, and for no other, and to exercise an efficient control over it, so that they might have brought an action to restrain it from being otherwise applied, etc., was intending to be partners, then they did intend to be partners." Per Jessel, M. R., in Pooley v. Driver, 5 Ch. Div. 458, 483 (1876). "It is nevertheless possible for parties to intend no partnership, and yet to form one. If they agree upon an arrangement which is a partnership in fact. it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners. The law must declare what is the legal import of their agreements, and names go for nothing when the substance of the arrangement shows them to be inapplicable. But every doubtful case must be solved in favor of their intent; otherwise, we should 'carry the doctrine of constructive partnership so far as to render it a trap to the unwary.'" Per Cooley, J., in Beecher v. Bush, 45 Mich. 188, 7 N. W. 785, 40 Am. Rep. 465. GIL. PART.-2 partnership, £1,500 for the remaining five years of the annuity, and £300 for Smith's share of a ship, in all, £7,000, for which Robinson gave a bond to Smith. That on the 22d of August, 1769, an assignment was made of all Robinson's effects to secure the balance then due to Smith, which was stated to be £10,000. Soon after the commission was awarded. Davy, for the plaintiff, insisted that the agreement between Robinson and Smith was either a secret continuance of the old partnership or a secret commencement of a new one, being for the retiring partner to leave his money in the visible partner's hands, in order to carry on his trade, and to receive for it 121/2 per cent. profit, which could not fairly be done, unless it be understood to arise from the profits of the trade, and that he ought therefore to be considered as a secret partner; and he relied much on a case of Bloxham and Fourdrinier v. Pell and Brooke, tried at the same sittings (7th of March 1775), before Lord Mansfield in the King's Bench, as in point. "This was also a partnership for seven years between Brooke and Pell, but at the end of one year agreed to be dissolved, but no express dissolution was had. The agreement recited that, Brooke being desirous to have the profits of the trade to himself and Pell being desirous to relinquish his right to the trade and profits, it was agreed that Brooke should give Pell a bond for £2,485, which Pell had brought into the trade, with interest at 5 per cent., which was accordingly done. And it was further agreed that Brooke should pay to Pell £200 per annum for six years, if Brooke so long lived, as in lieu of the profits of the trade; and Brooke covenants that Pell should have free liberty to inspect his books. Brooke became a bankrupt before anything was paid to Pell. And, this action being brought for a debt incurred by Brooke in the course of trade, Lord Mansfield held that Pell was a secret partner. This was a device to make more than legal interest of money, and, if it was not a partnership, it was a crime. And it shall not lie in the defendant Pell's mouth to say: 'It is usury, and not a partnership.'" Grose and Adair, for the defendant, argued that the present case is very distinguishable from that of Bloxham v. Pell. Pell was to be paid out of the profits of the trade, as appears from the covenant to inspect the books, which else would be useless. His annuity was expressly given as and in lieu of those profits. It was contingent in another view, as it depended on the life of Brooke, by whom those profits were to be made. In our case the annuity is certain, not casual. It does not depend on carrying on the trade, nor to cease when that is left off, but is due out of the estate of Robinson. It is not a necessary dilemma, but it must be either usury or partnership. It may be, and nrobably was, a premium for the good will of the trade. Two thousand guineas is no uncommon price for turning over the profits of a trade so beneficial that it appears to have been rated at £1,000 to each partner in the space of less than eight months. And whether that sum is agreed to be paid at once, or by seven installments, it is the same thing. Besides, whether there be or be not a secret constructive partnership is a question proper for a jury, who have decided it on consideration of all the circumstances. DE GREY, C. J. The only question is, what constitutes a secret partner? Every man who has a share of the profits of a trade ought also to bear his share of the loss. And if any one takes part of the profit, he takes a part of that fund on which the creditor of the trader relies for his payment. If any one advances or lends money to a trader, it is only lent on his general personal security. It is no specific lien upon the profits of the trade, and yet the lender is generally interested in those profits. He relies on them for repayment. And there is no difference whether that money be lent de novo or left behind in trade by one of the partners, who retires. And whether the terms of that loan be kind or harsh makes also no manner of difference. I think the true criterion is to inquire whether Smith agreed to share the profits of the trade with Robinson, or whether he only relied on those profits as a fund of payment; a distinction not more nice than usually occurs in questions of trade or usury. The jury have said this is not payable out of the profits; and I think there is no foundation for granting a new trial. GOULD, BLACKSTONE, and NARES, JJ., concurred. WAUGH v. CARVER et al. (Court of Common Pleas, 1793. 2 H. Bl. 235.) Assumpsit by Waugh against Erasmus Carver, William Carver, and Archibald Giesler, as partners, for goods sold and delivered by the plaintiff to Giesler at his agency at Cowes. The Carvers denied a partnership with Giesler. Verdict for plaintiff, subject to the opinion of the court on a case stated. The Carvers were engaged in the business of shipping agents at Gosport, and Giesler was engaged in a similar business at Plymouth. These parties entered into a written agreement in substance as follows: The said Giesler will remove from Plymouth and establish himself at Cowes for the purpose of carrying on a house there in the agency line on his own account; but, in consequence of the assistance and recommendations which the Carvers have agreed to render in support of the agency at Cowes, Giesler agrees to pay to the Carvers one-half of the commission or agency to be received on all the ships or vessels as may arrive or put into the port at Cowes, or remain in the road to the westward thereof, of which the said Giesler may procure the address, and likewise one-half of the discount on the bills of several tradesmen employed in the repairs of such ships or vessels. Giesler will also consult and advise with the Carvers respecting ships or ves |