This was an action of assumpsit brought by Sinith, the defendant in error, against Moore, to recover five hundred dollars, (as the cause of action was originally endorsed on the writ,) upon the common indebitatus counts. By leave of the court the endorsement of the cause of action was amended, so as to enable the plaintiff to declare in special counts for one thousand dollars, being the value of one fourth part of the crop raised by the plaintiff on the land of the defendant in the year 1844. The permission to amend" is assigned as one of the errors; but we think it was clearly within the discretion of the court to allow it. The object of the amendment was merely to enable the plaintiff to declare specially upon the same cause of action, and we think the statute (Clay’s Dig. 321, § 50,) as well as several decisions of 'this court, fully sustains the action of the court in allowing special counts to be added.—Ex parte Ryan, 9 Ala, 90; Teneson v. Martin, 13 Ala. 21.
2. The declaration contains the common counts, and two special counts, to each of which there was a demurrer.
It is contended by the plaintiff in error that both these counts are bad, because, as he alleges, they show a partnership existing between the parties in reference to the subject matter of the demand sought to be recovered. And it is also insisted that the second count is insufficient, in that it fails to set forth the liabili. íj of the defendant with sufficient eertainty„
We think it very clear that by this agreement, the parties inter sese did not contemplate the creation of a partnership; but that it is another mode only of providing compensation to the plaintiff, for his own and the service of his hands and horse, by giving him a portion of the crop instead of a moneyed compensation.
To constitute a partnership between the parties themselves there must be a communion of profits between them, and to constitute this, the interest in the profits must be mutual. Each party must have a specific interest in the profits as a principal trader. — Collyer on Part. 21, § 25. “ He is not a partner if he merely receive out of the profits a compensation for his trouble, in the character of an agent or servant of the concern.” — Story on Part. § 49, 55 5 Coll, on Part. § 25; 1 Denio 837; 6 Met. 82. Judge Story, in commenting upon the test of partnership as evidenced by the agreement to participate in the profits as profits, or as a principal trader, says, the true meaning seems to be, “ that the party is to participate, indirectly at least, in the losses as well as in the profits, or in other words, that he is to share in the nett profits and not in the gross profits.” “If,” says he, “the party is to share in the nett profits, which supposes him to have a participation of profit and loss, that will constitute him a partner ; if in the gross profits, then it will be otherwise.”
In the case before us, the defendant in error was to receive one fourth of the gross profit, and was not liable for the loss. Had the six hands and the mules and horses furnished by Moore all have died pending the year, the loss would have been his own, and so with respect to Smith. There was no mutuality in the
In Dry v. Boswell, (1 Camp. 329,) the owner of a lighter agreed with a person to work it, and to receive for his services one half of the gross profits; held, that such agreement did not amount to a partnership. The eases of Turner v. Bissell, (14 Pick. 192,) and Vanderburgh v. Hall, (20 Wend. 70,) are anal-agous in principle to the case before us, and furnish illustrations of the distinction between a participation in the profits as profits, and sharing in the profits as a mode of compensation. But it is unnecessary to cite further authorities to this point. The books abound with cases even stronger than the one before us, where it has been held that the parties, inter sese, were not partners. See the cases cited in Loomis v. Marshall, 12 Conn. 69, and Story on Part. 68, note 1 to § 45.
8. The second special count is objected to for uncertainty. That sets forth “ that in consideration that the plaintiff would furnish three hands, and feed and clothe said servants for the year 1844, and pay all of their expenses and work the same on the plantation of the defendant in Perry County, Alabama, and furnish provisions for himself and his family and said three hands, the lands and mules and horses of said defendant in the capacity of an overseer, he the said defendant agreed and promised to place on said plantation his hands, to wit, the hands owned by him, and live on said farm, and his mules and horses, and to furnish the said hands, &c., placed by him on said plantation with provisions, and said hands with clothing; to pay all expenses of the said hands and mules and to let said plaintiff cultivate said farm until (with) said hands and mules so furnished as aforesaid by said plaintiff and said defendant, and raise a crop thereon in said year 1844, for which said defendant agreed and promised that said defendant should have and draw a part of the crop raised on said farm by said defendant with the said hands mules and horses in the year 1844, in proportion to the
Having thus-copied literally the greater-part of the count, let us see whether it is sufficient. Premising-that the settled rule upon the subject requires that pleadings should not be insensible, repugnant, nor ambiguous or doubtful in meaning,- and that while it is both the duty and pleasure of the courts-to discourage mere technical objections, still, parties must be held-to observe reasonable certainty, especially in the more substantial parts of the declaration which describe the cause of action. We think the contract, as it is set-out in-the count, is too vague-and uncertain to be supported. What legal liability does the count impose upon the defendant 1 The plaintiff agrees to contribute three hands, and his services as overseer -for the year 1844, and the defendant his plantation in Perry County, and the hands, mules and horses upon the same, each defraying the expenses incident to his several contribution, and, with their hands and stock thus furnished, to raise a crop under the supervision of the plaintiff as overseer in-the year 1844. But the count, while it attempts to show ‘that -the crop was to be apportioned between the parties, is so vague in its allegations as to furnish no data for the division. It says, u-the defendant should have and draw a part of the crop raised on said farm by said defendant with the said hands, mules and horses in the year 1844, in proportion to the said hands of the said plaintiff so .placed on said farm.” We suppose this-is a clerical misprision, and that it should read, the plaintiff should have a part of the crop in proportion to the hands furnished by him,; for otherwise the number of hands furnished by the plaintiff is made to represent the .proportion to which the defendant shall be entitled, instead of each being entitled according to his contribution. But conceding the error-, still we are not furnished with any data so -as to enable us to arrive at -the defendant’s liability. If he is -to share, or the .plain».
The questions raised as to the variance between the allegations and the proof, it is unnecessary to notice, since, upon another trial, they may be avoided by the proper amendment.
Let the judgment be reversed and the cause remanded.