Dawson National Bank v. Ward & Gurr
120 Ga. 861
Ga.
1904
Check Treatment
Evans, J.

The Dawson National Bank brought an action of complaint in which it named Ward & Gurr, an alleged partnership composed of C. F. Ward and J. W. Gurr, as defendant. The plaintiff alleged, that the defendant firm was engaged in ‍​​​​​​‌​‌​​​‌‌​‌‌​​‌​​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​​‍a general warehouse business, and in the course of it's dealings with the plaintiff issued to the latter various cotton receipts calliug for *862cotton of the value of $695.77, but that the defendant had failed and refused either to deliver the cotton to plaintiff or pay the value of the same on demand. Service was perfected upon Gurr, but not upon Ward. The former appeared and set up the defense that there was no such рartnership as Ward & Gurr; that he had been employed by Ward to conduct the warehouse business under an agreement whereby he was to receive as pay for his services a certain proportion of thе profits realized, but did not hold himself out as a partner or have any dealings with the plaintiff as such. On the trial of the case the plaintiff sought to prove its allegation of partnership, introducing Gurr as one of its witnesses. At the conclusion of its evidence, however, the court granted a nonsuit, and the plaintiff excepted. The nonsuit was granted because, in the opinion of the court, the evidence failed to establish any pаrtnership between Ward and' Gurr. The testimony of the defendant Gurr, which was uncontradicted, was to the effect thаt he had no interest in the warehouse business, but merely managed the warehouse of Ward, and that his compensation was to be one half of the net profits. As early as in the day ‍​​​​​​‌​‌​​​‌‌​‌‌​​‌​​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​​‍of Lord Eldon, it was recognized as settlеd law that “if a man stipulates that, as a reward of his labor, he shall not have a specified interest in the businеss, but a given sum of money even in proportion to a given quantum of profits, that will not make him a partner.” Ex parte Hamper, 17 Ves. 412. This court has repeatedly recognized the distinction between payment of a definite portion of the profits, in compensation for labor done, and a stipulation for a joint interеst in profits which would entitle the party to an account as a partner. In the familiar arrangement between a landlord and his cropper, where the landlord furnishes the land and the cropper agrees to cultivate the crop, and, after payment of expenses connected with the cultivation and gathering of the crop, to receive as compensation a given proportion of the net proceeds, it has been held that a partnership does not exist. Gurr v. Martin, 73 Ga. 528; DeLoach v. Delk, 119 Ga. 884, and cit. So, also, in the sawmill cases, where the- owner furnishes the mill, wagons, mules, and the hands, and another person, owning no interest in the property, givеs the business his personal attention in looking after it under an agreement that he is to receive.in payment of his services one half-of the profits, it *863has been held that the parties to the ‍​​​​​​‌​‌​​​‌‌​‌‌​​‌​​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​​‍agreement are nоt partners. See Thornton v. McDonald, 108 Ga. 3; Thornton v. George, Id. 9; Jordan v. Jones, 110 Ga. 47; Padgett v. Ford, 117 Ga. 508.

If the party’s interest is that of owner; if he has a right to dispose of and control the prоfits of the enterprise as profits, then there is a partnership. • Where, however, a party makes no сontribution to .the capital stock of the concern, nor has any right to control the profits, but only is to receive a certain proportion of the net profits in compensation for his labor, the pаrtnership relation does not exist. This distinction is pointed out in the case of Brandon v. Connor, 117 Ga. 759. In that case both of the pаrties contributed to the capital of the business; one of the parties to the business was to “ put in ” sixteen mulеs and harness against the other’s six mules and his services. The business was that of grading a portion of a railroad, and the profits were to be equally divided. The agreement contemplated that each party to thе contract was to take one half of the profits as profits, and the parties thereto were hеld to be partners. In the case at bar, Ward was conducting a cotton-warehouse business; he wished to employ some ‍​​​​​​‌​‌​​​‌‌​‌‌​​‌​​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​​‍one to manage the same, and contracted with Gurr for his services. Instead of paying Gurr stiрulated wages, Ward agreed to give, and Gurr agreed to accept, one half of the net profits оf the business. Gurr had no right to control the profits; all that he could claim was that Ward was to pay him for his servicеs an amount equal to one half' of the net profits. An agreement of this kind did not make them partners, but was a сontract by an employer to pay his employee wages amounting to a given quantum of the net profits of the employer’s business. Sankey v. Columbus Iron Works, 44 Ga. 234. There is nothing in the record indicating any intention to form a partnership. The warеhouse reeeipts were issued in the name of Ward, and the plaintiff dealt with Ward as an individual, in extending him credit. Sоme stress was laid, in the argument before us, upon the use by Gurr in his testimony of the plural pronoun “we,” in referring to the warehouse business. This alone can not authorize a conclusion that he had a joint interest in the business. It is of common occurrence for a servant or employee to refer to the business of his employer as “our” business, and to say that “we” did this or that thing. The evidence did not establish the relation of part*864ners between Ward and Gurr, and the court did not err in granting ‍​​​​​​‌​‌​​​‌‌​‌‌​​‌​​​​​‌​‌‌‌​‌‌‌​‌‌​‌‌‌‌​‌‌​​​‍a nonsuit on motion of Gurr, the only defendant wbo was served. Judgment affirmed.

All the Justices concur.