The principal and decisive question in this case is the propriety of the following instruction given by the court. “ The court instructs the jury that a co-partnership is an agreement between two or more persons of sufficient capacity to contract, to carry on a given business and share the profits of such business; and, if the jury believe from the evidence in this case that there was either a verbal or written agreement between the plaintiff and Erneline Harshe, by which the former was to occupy and cultivate the farm of said Erneline Harshe for any given length of time, and that each was to receive a moiety or share of the crops raised or grown thereon under sqcli agreement, then such farming was a co-partnership business, and belongs to another adjustment, and must be settled or adjusted in a different form of action, and cannot be made available in this action; and, if they find that the matters embraced in defendant's' account were connected with or arose out of such business, they will exclude all evidence of such account from their minds,” &e. The evidence in the case is not stated in the bill of exceptions, but it is stated that evidence was offered tending to prove that plaintiff and defendant entered into an agreement by which plaintiff was to cultivate a farm of defendant, lying in St. Erancois county, on shares; that plaintiff and defendant were each to defray one moiety of the expenses attending such cultivation of said farm, and were, to share equally in the profits thereof. The instruction asserts, as a matter of law, that the occupancy and cultivation by one of the farm of another, under an agreement that the owner and occupant will divide the crops raised in an agreed proportion, constitutes the owner and occupant co-partners. This is probably a very common modo of leasing farms in this State, but the proprietor and ocou
A definition of partnership, broad enough to embrace all eases and narrow enough to exclude such as ought to be excluded, has been found a very difficult and embarrassing task to those writers who have published books on the subject. The courts have been embarrassed also in nice refinements about partnerships per sese, and partnerships which are only as to creditors. Indeed, Judge Story» after a prolonged examination of these distinctions, seems to conclude that the intention of the parties ought to be the controlling circumstance to determine their relations, and, therefore, where the profits and losses are to be shared by the parties in fixed proportions, and, to use his language, “each is intended to be clothed with the powers and rights and duties and responsibilities of a principal, either as to the capital stock or the profits, or both, there may be a just ground to assert, in the absence of all controlling stipulations and circumstances, that they entered a partnership.” This, it will be perceived, is quite indefinite.
It is essential to a partnership that there be a community of interest in the subject of it, and this community of interest must not be that of mere joint tenants or tenants in common. When the effect of'the agreement is, as propounded in the instruction, that one should occupy and cultivate the farm, and the crops should be divided equally between the occupant and the owner, no partnership is necessarily intended or created. In the case of Dry v. Boswell, (1 Camp. 329,) where there was an agreement between the owner of a lighter and a lighterman, that the lighterman should work the lighter, and the gross earnings should be equally divided between him and the owner, Lord Ellenborough held that this was only a mode of paying the lighterman his wages, and was not a participation in profits and loss, and no partnership existed. So in Ambler v. Bradley, (6 Vt. 119). A owned a saw mill and
Reversed.