Thus, where A. pur

ter of an agent or servant of the concern. chased goods for an adventure on the credit of B., and it was agreed, "that, if any profit should arise from them, B. should have one half for his trouble, it was held, that this was not a partnership between the parties (a).”

Upon the same principle, factors and brokers receiving a commission out of the profits of the goods sold by them, are not partners with their principals. In Dixon v. Cooper (b), which was an action for goods sold and delivered, the only witness for the plaintiff was the factor who sold the goods, and who was to receive a shilling in the pound on the price. It was held, that he was a competent witness; a circumstance inconsistent with the existence of a partnership between the parties.

Again, in the case of Benjamin v. Porteus (c), it was held, collaterally, in a question of evidence, that, if a person is employed to sell goods, and is to have for himself whatever money he can procure for them beyond a certain sum, he is not a partner with the owner of the goods. In that case, an action was brought to recover the price of a quantity of indigo, which was sold for 3s. a pound weight, and the broker, who was employed by the plaintiff, was called as a witness to prove the contract. Upon being examined on the voir dire, he stated, that, by his agreement with the plaintiff, he was to have for his own profit whatever sum he could get for the indigo above half a crown for the pound, which price the plaintiff had fixed for himself; but not an allowance of so much per cent. on the sale, by way of commission, in the usual way. At the trial, Eyre, C. J., thought this was an objection to the competency of the witness, on the score of interest, and directed a nonsuit. The Court of Common Pleas, however, set aside the nonsuit, and granted a new trial. Heath, J., said he was of opinion that the witness was admissible; that he must be considered as a broker, and not as a principal: he was only paid for his trouble in a particular manner. Rooke, J., likewise said, that he could see no difference, in point of interest, between a person selling upon a commission, and one who is to have a share of the profit; nor could he make a distinction between this witness and a common broker. "He is an agent," added his Lordship, "who

(a) Hesketh v. Blanchard, 4 East,

144.

(b) 3 Wils. 40.
(c) 2 H. Bl. 590.

makes his bargain between two others, and whose evidence is admissible from necessity, which is a necessity created by the parties themselves."

In Smith v. Watson (a), it was agreed between A. and B., that A. should buy whalebone through B., as his broker, and that, as a remuneration for his trouble, B. should receive one fourth of the profits arising from the sale, and bear one eighth proportion of the losses. The parties acted on this agreement, and it was clear, upon the evidence, that A. considered B. only as his agent or broker. The question before the Court was, whether B. was interested as a partner in the property, the subject-matter of the adventure-not whether he was a partner in the adventure itself. The Court, however, seemed to be of opinion, that, though not interested in the property, he was a partner in the profits.

In reference to the case last cited, it may be remarked, that an undertaking to share the loss is inconsistent with the notion of an agreement to take a share of the profits by way of remuneration (b), which was probably the ground on which the Court formed their opinion. In a recent case, the stipulation to share the loss was held to shew conclusively, that the agreement was one of partnership, and not mere agency. There A. agreed with B. to convey, by horse and cart, the mail between two places, at 91. per mile per annum, and to pay his proportion of the expense of the cart, &c., the money received for the carriage of parcels to be divided between the parties, and the damage occasioned by loss of parcels, &c., to be borne in equal portions; it was held, that this agreement constituted a partnership, and not a mere measure of wages; and, consequently, that A. could not maintain an action against B. for the 97. pe mile (c).

Generally, however, upon the same principles as are applicable to brokers, persons acting merely in the character of servants in an adventure, and receiving a certain share of the profits in lieu of wages, are not partners in the undertaking. Where, by articles, it was stipulated that the produce of a

(a) 2 B. & C. 401; 3 D. & R. 751. See Reid v. Hollinshead, 4 B. & C. 867; 7 D. & R. 444.

(b) In Waugh v. Carver, Eyre, C. J., says, "I cannot agree that this

was a mere agency, for there was a risk of profit and loss.”

(c) Green v. Beesley, 2 Bing. N. C. 108; 2 Scott, 164.

whaling voyage should be divided in certain proportions, viz. a certain proportion to the owners, a certain proportion to the captain, and the rest to the other officers and seamen, in lieu of wages, it was held, that a seaman under these articles was not a partner with the captain, and might maintain an action against the latter for his share of the profits (a).

So, the captain of a ship, who, instead of receiving wages, is to share in the profit of the adventure on which he sails, is not a partner with the owner. Mair (6) was the owner of a ship and cargo; Young was the captain, under an agreement that he was to have, in lieu of all wages, primage, &c., one fifth share of the profit or loss of the intended voyage, on ship and cargo, and was to follow Mair's instructions, do all the business himself that he could do, and, for the rest, make the best bargain he could. The ship sailed, and afterwards Mair, being indebted to Sharpe & Co., executed to them a bill of sale of the ship; but Sharpe & Co. never took actual possession of the ship, though it was argued for them, that they had, by means of this transfer and notice thereof to the captain, the virtual possession. Mair, as also Sharpe & Co., afterwards became bankrupts; and in an action of assumpsit by the assignees of the former against the assignees of the latter, the question was, whether, under the circumstances mentioned in the report, Mair, when he became a bankrupt, had the possession, order, and disposition of the ship and cargo, within 21 Jac. 1, c. 19. In behalf of Sharpe & Co., it was argued, amongst other things, that it was out of their power to take actual possession; for, by the agreement between Mair and the captain, the latter was interested in ship and cargo to the extent of one fifth, in respect of which Sharpe & Co. could not have divested him of the possession-sed, per Lord Ellenborough, "one of the points which has been raised in this case is-Supposing in other respects it was proper for the Sharpes to take possession, whether they were precluded from doing so, in respect of the captain's interest. And, upon this point, it has been contended that the captain was virtually a partner; but, on what ground has it been so contended? The ground is, because payment of the captain's wages was to depend, as to its amount, upon a re

(a) Wilkinson v. Frasier, 4 Esp.

182.

(b) Mair v. Glennie, 4 M. & S. 240.

ference to the value of the cargo; but, according to that mode of argument, every seaman in a Greenland voyage would become a partner in the fishing concern. There is no pretence, therefore, for saying that the captain was a partner, because his wages were to be regulated and paid by reference to a calculation on the profits of the adventure.

Again, though an agreement between A., the sole owner of a lighter, and B., a lighterman, that B. shall work the lighter, and that the net profits made by her shall be equally divided between them, will make A. and B. partners in the concern, and therefore B. as well as A. will be liable for the repairs of the lighter; yet, an agreement between the same persons, that B., in consideration of working the lighter, shall have half her gross earnings, does not constitute a partnership between A. and B., being only a mode of paying B. for his labour (a). So, where A. had purchased some bullocks, and had put them to depasture on the lands of B., and it was agreed "that the profits to be made upon the resale, (after they had been fatted upon B.'s land), above £20, at which A. had valued them, should be equally divided between him and B.," it was ruled that this agreement did not make A. and B. partners, but merely fixed the mode of paying B. for the pasture. And this opinion was confirmed by the Court of King's Bench (6).

The same view of the situation of an agent, as contrasted with an actual partner, appears to have occurred to the Court of Common Pleas, in Withington v. Herring (c). There Crabtree was appointed agent for Messrs. H. & Co., for the purpose of entering into contracts for the working of mines in Peru. Before his departure from London, an agreement was signed by him and Messrs. H. & Co., and he was likewise furnished with a letter of instructions, a letter of credit, and a power of attorney, with which he proceeded to Lima. At Lima, he drew bills upon Messrs. H. & Co., payable to the plaintiffs' order. An action having been brought by the plaintiffs against H. & Co., on the bills, and for money had and received, one question was, whether the defendants were liable on the ground of Crabtree being a partner with H. & Co. under the agreement, part of which was as follows:-" Mr. Crabtree shall receive from

(a) Dry v. Boswell, 1 Camp. 330. See Gibbons v. Wilcox, 2 Stark. 43. (b) Wish v. Small, 1 Camp. 331. (c) 3 Moore & Payne, 30.

Messrs. H. & Co., for his remuneration, the sum of £1000; and if this mission shall occupy Mr. C. more than a twelvemonth from the date of his leaving London, he shall receive at the rate of £1000 per annum from the said date. Mr. C. shall further receive one fifth share of the clear profits which Messrs. H. & Co. may make by such contracts, or by forming the association to be founded on the contracts to be entered into by him." The Court of Common Pleas declined to determine the case on the point of partnership, holding that the plaintiffs had a clear right to recover, arising from the ample powers given to Crabtree by the power of attorney. Two of the Judges, however, inclined to the opinion that this was not a partnership; and Best, C. J., said, that, at the trial, he thought it was not a case of partnership, but that it ranged within that class of cases in which a servant or agent receiving a certain per-centage upon the profits, had been decided not to create a partnership. That it was not necessary then to consider whether or not the view he had taken at the trial was correct, but he inclined to the opinion that it was.

Upon the same principles, it seems to have been held, that the manager of the Glasgow Glass Work Company, enjoying an annual stipend, and also, by way of further remuneration, a share of the profits, calculated according to a proportion of capital and stock, not advanced by him, but assigned by way of nominal interest, was not a partner as between himself and the members of the company (a). On the other hand, where A., a merchant and insurance broker, agreed to pay B. a certain salary for superintending his mercantile concerns, and also agreed "to allow Mr. B. one half of the profit arising from my account of insurances from the commencement of the said account until the present period, or those that may hereafter be done," the parties, having acted on this agreement, were held to be partners in the insurance business (b). And where Thomas, a merchant at Cadiz, and R., a merchant in London, were partners in an adventure, and, before the whole of that adventure was disposed of, the parties entered into a fresh arrangement, under the following memorandum :-"I do agree to give Thomas half the profits he makes on my goods, instead of a

(a) Geddes v. Wallace, 2 Bligh, 270.

(b) Knowles v. Haughton, Lib. Reg. 1804, A. 1008.