they are each clothed with an implied authority to enter into all customary and reasonable contracts with the passengers for their conveyance; and all, consequently, may be bound thereby; (g) and, if one of them, whose business it is to hire coaches, contracts with a coachmaker for the supply of coaches to run throughout along the whole line of road, and not merely for his particular district, this is a contract with the whole partnership, and all are jointly responsible upon it. (h) 98. Who may be made liable as partners.-Where a person is sought to be made liable on the ground of his being a partner, the true test is whether or not he has constituted the other alleged partner his agent in respect of the partnership business. A participation in the profits, though cogent, is not conclusive evidence of a partnership. (2) And it is now established that, 1 (g) Helsby v. Mears, 8 D. & R. 289. (h) Arthur v. Dale, Collyer Part., 330. (1) Wheatcroft v. Hickman, 9 C. B., N. S. 47; 8 H. L. C. 268; 30 L. J., C. P. 125. Killshaw v. Jukes, 3 B. & S. 847; 32 L. J., Q. B. 217. Bullen v. Sharp, L. R. I. C. P. 86; 35 L. J., C. P. 105. Eng. & Ir. Church & University Ass. Soc., in re, 1 H. & M. 85. bers of a telegraph company are not partners, but only tenants in common. Irvine v. Forbes, 11 Barb. 587; and see Fay v. Noble, 7 Cush. 188. 1 6; There is no partnership without a joint transaction, without a lawful and valid agreement to share in some joint enter. prise, or some joint benefits received (Parsons on Partnership, p. Atkins v. Hunt, 14 N. H. 205; Goddard v. Pratt, 16 Pick. 412; McGraw v. Pulling, 1 Freem. Ch. 357; Bird v. Hamilton, Walker, Ch. 361; Smith v. Burnham, 3 Sumner, 435). And see further as to what will constitute a partnership, Dwinell v. Stone, 3c Me. 384; Terrell v. Richards, 1 Nott & Mc. 20; Everett v. Chapman, 6 Conn. 347; Doggett v. Jordar, 2 Fla. 541; Drake v. Elwyn, 1 Cai. 184; Beecham v. Dodd, 3 Harrington (Del.) 485; Chapman v. Wilson, 1 Rob (Va.) 267; President, &c. v. Rice, 2 Allen, 480; Moody v. Rathburn, 7 Minn. 89; Cook v. Carpenter, 34 Vt. 121; Williams v. But although a right to participate in the profits of trade is a strong test of partnership, and that there may be cases where, from such perception alone, it may, as a presumption, not of law but of fact, be inferred; yet, that whether that relation does or does not exist, must depend on the real intention and contract of the par ties. (k) Thus, an assignment to trustees for the benefit of creditors, upon trust to divide the profits of the business amongst the creditors in reduction of their debts, does not render the creditors who execute the deed and participate in the profits responsible to third parties as partners. (7) "The law as to partnership," says Lord Wensleydale, "is a branch of the law of principa! and agent. A partner embraces both characters; and, where a man orders another to carry on trade, whether in his own name or not, to buy and sell, and to pay over all the profits to him, he is the principǝl, and the person so employed is the agent, and the principal is liable for the agent's contracts. This is (k) Mollwo. March & Co. v. The Court of Wards, L. R., 4 P. C. 419. Holme v. Hammond, L. R., 7 Ex. 218; 41 L. J., Ex. 157. (7) Wheatcroft v. Hickman, 9 C. B., N. S. 47; 8 H. L. C. 268; 30 L. J., C. P. 125. ler, 35 Ill. 544; Smith v. Tarlton, 2 Barb. Ch. 336; Bonnaffle v. Fenner, 6 Smedes & M. 212; Cutler v. Thomas, 25 Vt. 73; Buffum v. Buffum, 49 Me. 108; Villa v. Jonte, 17 La. Ann. 9; Decker v. Howell, 42 Cal. 636; Stapleton v. King, 33 Iowa. 28; Strader v. White, 3 Neb. 348; Lewis v. Greider, 51 N. Y. 231; Smith v. Small, 54 Barb. 223; Dalton City v. Dalton Mfg. Co. 33 Ga. 243; Ryder v. Wilcox, 103 Mass. 24; Tozer v. Hirsbey, 15 Minn. 257; Lord v. Procton, 7 Phil. (Pa.) 630; Tumlin v. Goldsmith, 40 Ga. 221; Southwick v. McGovern, 28 Ill. 533. A mere comumnity of interest, however, will not constitute a partnership (Gregory v. Brooks, 3 Thomp. & C. (N. Y) 517; Bockler v. Hardenburgh, 37 N. Y. Superior Ct. (J. & S.) 110). But as to where one is authorized to hold himself out as a partner, see Hinman v. Littell, 23 Mich. 484. The partnership must be voluntary (Hedges' Appeal, 63 Pa. St. 273); mere general reputation will not establish the relation. the true principle of partnership liability." (m) By the 28 & 29 Vict. c. 86, s. 1, the advance of money by way of loan, to a person engaged or about to engage in any trade or undertaking, upon a contract in writing with such person, that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on such trade or undertaking, shall not of itself constitute the lender a partner with the person or the persons carrying on such trade or undertaking, or render him responsible as such. By sect. 2, no contract for the remuneration of a servant or agent of any person engaged in any trade or undertaking, by a share of the profits of such trade or undertaking, shall of itself render such servant or agent responsible as a partner therein, or give him the rights of a partner. By sect. 3, no person being the widow or child of the deceased partner of a trader, and receiving by way of annuity a portion of the profits made by such trader in his business, shall, by reason only of such receipt, be deemed to be a partner of, or be subject to any liabilities incurred by, such trader. By sect. 4, no person receiving by way of annuity or otherwise, a portion of the profits of any business, in consideration of the sale by him of the good-will of such business, shall, by reason only of such receipt, be deemed to be a partner of, or be subject to the liabili ties of, the person carrying on such business. By sect. 5, in the event of any such trader as aforesaid being adjudged a bankrupt, or taking the benefit of any act for the relief of insolvent debtors, or entering into an arrangement to pay his creditors less than 205. in the (m) Wheatcroft v. Hickman, 9 C. B. N. S. 47; 8 H. L. C. 268; L. J. C. P. 125. Adams v. Frank, 53 Ill. 219; Owens v. Mackall, 33 Md. 382; Buck v. Dowley, 82 Mass. (16 Gray) 555; Manhattan, &c. Mfg. Co. v. Sears, 1 Sweeney, 426. pound, or dying in insolvent circumstances, the lender of any such loan as aforesaid shall not be entitled to recover any portion of his principal, or of the profits or interest payable in respect of such loan, nor shall any such vendor of a good-will as aforesaid, be entitled to recover any such profits as aforesaid, until the claims of the other creditors of the said trader for valuable consideration, in money or money's worth, have been satisfied. By sect. 6, in the construction of the Act, the word "person" is to include a partnership firm, a joint-stock company, and a corporation. 99. Inchoate and incomplete partnerships. If several persons agree to unite together in partnership and to raise a joint-stock, and one borrows money, and another procures goods, to make up his share of the joint contribution, the one is not liable for the debt contracted by the other, as the partnership is not fully formed, and the partner is not acting in discharge of the ordinary functions of the copartnership, but on his own private account. (2) But, as soon as the partnership is in actual operation, and has begun business on the joint account, all those of the intended partners who assent to the commencement of the trading operations for their common benefit, or take an active part in promoting them, become present and complete partners in the undertaking, and impliedly accord to each other all such powers and authorities as are usual and reasonably necessary, to enable them to discharge the functions of the copartnership, and carry the commnon object into effect. 100. Restrictions upon the apparent general authority of one partner to bind another, made by agreement amongst the partners, are operative only as between (n) Saville v. Robertson, 4 T. R. 725. Smith a. Craven, I Cr. & J. 500. Greenslade 7. Dower. 7 B. & C. 63S. the partners themselves, and do not limit the partnership authority, as to third persons who acquire rights by its exercise, unless the limitation of authority and liability is established and made known to parties dealing with the firm in the mode presently pointed out. The principal in a business who holds out an agent to the world as an ostensible principal, and carries on the business under the management and in the name of such agent, is bound by all such acts and contracts of the agent as are incidental to the ordinary conduct of the business; and such liability as to the rest of the world cannot be restricted by any private arrangement between them. (0) But, if goods are supplied to A and B (who are partners) after notice by A that he will not be answerable for any goods subsequently sent, it is incumbent on the plaintiff, in an action for the amount of such goods, to prove some act of adoption on the part of A, or that he has derived benefit from the goods. (p) 101. Dealings by one partner in fraud of the copartnership. Every one of the partners is responsible for things done within the scope of their implied authority, although they be done in fraud of the partnership, unless the plaintiff who seeks to charge the copartnership upon the fraudulent dealing of the single partner was himself a party, or in any way privy, to the fraud. If a simple contract concerning the partnership affairs and business is entered into by one of several partners in the trading name of the firm (0) Edmunds v. Bushell, 35 L. J., Q. B. 20. 1 (p) Willis v. Dyson. I Stark. 164. And, similarly, where one is authorized to hold himself out as the partner of certain persons, and does so represent himself, it is the same as if those persons themse' ves represented that a partnership existed between them all. Hinman v. Lit tell, 23 Mich. 484; and see Thomas v. Green, 30 Md. 1. |