of a partnership has been allowed to prevail are those in which money. is actually brought into the partnership account, and where it would depend, upon taking the account, whether the sum was due or not from one partner to the other. But in this case I think there is not sufficient evidence of partnership. Conceding, however, that there was a partnership, the debt here is perfectly distinct from any partnership accounts. Although Miss Briggs was promised an eighth share of the profits, this engagement appears to have been made after the loan of the money, and was not stipulated for by her previous to the advance of the money. The money was to be repaid at all events, and there is nothing to show that it was intended to form an item in any partnership accounts. It is clear, therefore, that there was no contemplation of a partnership between these parties, but that the real object of Miss Briggs was to obtain, if she was able, more interest. than £5 per cent.

Sir J. CROSS. This is a petition of the bankrupt to supersede the fiat, on the ground that the petitioning creditor was his partner in trade. But, as his honor the Chief Judge has already stated, there was no contemplation of any partnership in fact. It is true that, if B. agrees to give A. a share in the profits of his business, the court may consider them quasi partners for all purposes of responsibility to third persons. But B., after borrowing money of A., cannot turn round upon him and say, "You are my partner, by operation of law, and therefore I will not pay you your debt." This would not be permitted by any court, either of law or equity. But, even if there was a partnership between these parties, I think that this debt was independent of any partnership transaction, and is quite sufficient to enable a petitioning creditor to sustain a fiat. It appears to me, however, that there was no partnership in fact.

Petition dismissed.

SODIKER v. APPLEGATE.

(Supreme Court of West Virginia, 1884. 24 W. Va. 411, 49 Am. Rep. 252.) SNYDER, J. Suit in equity, brought by William Sodiker against Lewis Applegate, in June, 1879, in the circuit court of Brooks county, to settle the accounts of an alleged partnership between the plaintiff and defendant for running a grist and flour mill, buying and selling grain and products of said mill. The bill avers that by the terms of the partnership the defendant was to furnish the gristmill then owned by him and put it in repair at his own expense, the plaintiff was to run and operate the mill, the funds for carrying on the business. and keeping the mill in repair were to be furnished by the parties in equal portions, and the profits to be shared equally between them.

The defendant in his answer positively denies that any partnership of any kind existed between him and the plaintiff. He avers that

while the plaintiff worked at his mill he did so as a hired hand. Being without means and penniless, he was employed to run the mill so long as he might do so satisfactory to the defendant and the customers of the mill. The cause was referred to a commissioner for an account, depositions taken, and the commissioner reported that in his opinion no partnership existed; but, if the court should decide that the proofs established a partnership, he reported due to the plaintiff $126.87.

The plaintiff excepted to that part of the report which found that no partnership existed, and the court by its decree of June. 14, 1883, sustained the said exception and decreed that the plaintiff recover from the defendant the said sum of $126.87 and costs. From this decree the defendant appealed.

It is apparent from the evidence in this cause that no partnership existed. The only agreement between the plaintiff and defendant is stated by the plaintiff when he says: "My agreement was: Mr. Applegate was to furnish me a house to live in, and I was to have the half. It was to be half and half between us. Inside repairs of the mill were to be done by me, and half of the expenses to be paid by each. Outside repairs to be paid by Lewis Applegate. There was no agreement between us as to losses."

The evident meaning of this language, as shown, by the other testimony and facts, is that the plaintiff was employed by the defendant to take charge of his mill as miller, and for his services in that behalf the plaintiff was to receive one-half the tolls or earnings of the mill. The half of the earnings or profits to which the plaintiff thus became entitled did not make him a partner. This merely constituted the manner of payment and the measure of his compensation for his services as miller.

To constitute a partnership between the parties who share in the profits, the interest in the profits must be mutual; that is, each. person must have a specific interest in the profits as a principal trader. He is not a partner if he merely receives out of the profits a compensation for his services as an agent, employé or servant. Collyer on Partn. § 31. Thus, where A. purchased goods for an adventure on the credit of B., and it was agreed "that, if any profits should arise from them, B. should have one-half for his trouble, it was held that this was not a partnership between the parties." Hesketh v. Blanchard, 4 East, 144. In all cases there must be a participation as principal. If the persons merely occupy the relation of principal and agent, employer and employé, or factor, no partnership can be predicated upon the fact that such agent, employé, or factor receives a part or share of the profits for his services or other benefits conferred. This proposition is illustrated by numerous cases, among which are the following: Berthold v. Goldsmith, 24 How (U S.) 542, 16 L. Ed. 762; Burckle v. Eckhart, 1 Denio (N. Y.) 341; Bowyer v. Anderson, 2 Leigh (Va.) 550; Chapline v. Conant, 3 W. Va. 507, 100 Am. Dec.

766; Dils' Adm'r v. Bridge, 23 W. Va. 20; Hanna v. Flint, 14 Cal. 73; Morgan v. Stearns, 41 Vt. 398.

In every partnership there is a community of interest, but every community of interest does not create a partnership. There must be a joint ownership of the partnership funds, or a joint right of control over them, and also an agreement to share profits and losses arising therefrom. Thus an agreement between A. and B. that A. shall work B.'s farm upon shares and divide the produce does not constitute them partners inter sese, or as to third persons. Putnam v. Wise, 1 Hill (N. Y.) 234, 37 Am. Dec. 309. Nor are the owners of real estate who contract with mechanics to build a mill or other building upon their land partners inter sese; but either party, paying more than his share of the expense of the construction, may recover such excess of the other owner in assumpsit. Porter v. McClure, 15 Wend. (N. Y.) 187.

It is unnecessary to illustrate further what particular facts and agreements do or do not constitute a partnership. The books are full of nice distinctions and definitions, showing that it is often difficult to decide to which class the particular facts and circumstances assign cases. In the case before us, however, there is no such difficulty. Under none of the authorities or definitions could this be classed as a partnership.

I am therefore of opinion that the decree complained of must be reversed, with costs to the appellant, and the plaintiff's bill dismissed, with costs.

Reversed.

SECTION 2.-INTENTION TO BE PARTNERS.

ZUBER v. ROBERTS.

(Supreme Court of Alabama, 1906. 147 Ala. 512, 40 South. 319.) Bill by R. B. Zuber against Paul Roberts. From a decree in favor of defendant, plaintiff appeals. Affirmed.

DOWDELL, J. The bill in this case is filed for the purpose of a settlement of an alleged partnership between the complainant and respondent. The respondent, by his answer, denies the allegations of the bill as to the existence of any partnership between the parties. There was no contract in writing, and there was no express agreement between the parties for the creation of a partnership; and the determination of this question must be had from the terms of the agreement entered into between the parties, the character and conduct of the business, and the intention of the parties, to be gathered from the circumstances attending the entire transaction.

་

In 1900 Paul Roberts obtained a lease for the Alabama Consolidated Coal & Iron Company on a limestone quarry and entered into a contract to furnish said company with 200 tons of limestone a day for a term of three years. At this time the appellee was superintendent of the Alabama Consolidated Coal & Iron Company's furnace at Ironaton, Ala., and the appellant was an employé of said company under the appellee as superintendent. An agreement was subsequently entered into between the parties, whereby the appellee was to furnish the capital for the equipment of the quarry and for stocking a commissary, etc., and the appellant was to manage the quarry and com-. missary, and for his services was to receive one-half of the profits derived from the quarrying of stone and one-half of the profits from the commissary, and, as the appellant states in his testimony, one-half of the rents collected on houses on the quarry premises. Operations were conducted under this arrangement for about two years, when the appellee made a contract with the Alabama Consolidated Coal & Iron Company whereby he surrendered his lease and canceled the contract for the supply of limestone during the unexpired time. He was paid a sum of money by the Alabama Consolidated Coal & Iron Company for the surrender of his lease and cancellation of the contract, and the appellant thereupon filed his bill for a settlement of the alleged partnership, claiming that he was entitled to participate equally with appellee in the sum received by appellee for the cancellation of the contract and the surrender of the lease, all of which the appellee denies, and appellee claims that the business was his alone, and that a division of the profits was only an adopted method. of fixing the compensation of appellant for his services as manager of the business.

The evidence shows that the business was conducted in the name of Paul Roberts, or in the name of the "Consolidated Quarry," which latter name was used by appellee for the convenience of the Alabama Consolidated Coal & Iron Company in the keeping of their accounts, and not as a partnership name. The appellant claims and testifies that the name of "Roberts & Zuber" was used in conducting the quarry business, and the evidence shows that the appellant had some bills of lading for lime rock made out in the name of Roberts & Zuber. The appellee, on the other hand, testified that he did not authorize or consent to the use of such name, and, upon being informed that such name was being used, he notified the agent of the railroad company and the clerk in the commissary, who made out the bills of lading, that the bills should not be so made. The evidence further shows that the goods for the commissary were purchased in the name of Paul Roberts, and, as shown by sundry exhibits attached to the deposition of Paul Roberts, the complainant, Zuber, would order goods. for the commissary, signing the name "Paul Roberts per R. B. Zuber," on the paper of the "Consolidated Company," which had the names. "Paul Roberts, Proprietor," and "R. B. Zuber, Mgr.," printed thereon.

The account for lime rock shipped to the Alabama Consolidated Coal & Iron Company was kept in the name of Paul Roberts, and all settlements were made with Paul Roberts by checks drawn to his account. The capital for conducting the business was all furnished by the appellee. The lease on the quarry and the contract for the furnishing of stone, which made the business possible, were the property of the appellee, and were never by him transferred or assigned in any way to the appellant, in whole or in part. On the other hand, the appellant contributed to the arrangement only his services as manager, and for such services received, instead of a stipulated salary, one-half of the net profits. The appellant himself testifies that the agreement was that the appellee should put up the money in lieu of appellant's services, and certain profits were to be divided between them.

While the evidence shows a community of interest in the profits, it does not satisfactorily show that under the arrangement and conduct of the business there was to be any community in the losses. The appellant contends that the fact, which is undisputed, that he bore his part of the loss in the payment of damages for an injury suffered by one of the employés working in the quarry mines goes to prove that he was not only to share in profits, but in the losses of the business as well, and therefore he was a partner. As to this matter, the evidence shows that at the time the appellant objected to paying any part of said loss, and the evidence further explains why he consented to pay one-half, and this was not upon the ground of any partnership liability. The facts in the present case are very much like those in the case of Tayloe v. Bush, 75 Ala. 432, where there was a contract for the conduct of a farm; the agreement providing that one party should furnish the farm and certain stock, tools, etc., the other to conduct it, keep an account of all expenses, and to make equal division of the net proceeds. It was said in that case: "In determining whether a partnership was created, the intention of the parties is the single question for consideration. There is a well-recognized distinction between cases where third persons have dealt with parties, associated in business as partners, and controversies between the parties themselves, or controversies in which the rights of such persons are not involved. In the one class of cases, a partnership may arise by mere operation of law, without an inquiry into or in direct opposition to the expressed intention of the parties. In the other class of cases, the question is as to the intention of the parties. * The

test of a partnership generally is whether there is a community of interests, a participation in losses and profits. Howze v. Patterson, 53 Ala. 205, 25 Am. Rep. 607; Autrey v. Frieze, 59 Ala. 587. The rule is not without its exceptions; and when a party is without interest in the capital or business and is to be compensated for his services from the profits, or rewarded by the profits or what is to depend upon the result of an adventure or enterprise, the rule is without application. This contract is within the exception. The participation of Thomas