68 F. 406 | 5th Cir. | 1895
after stating the case as above, delivered the opinion of the court.
There are several assignments of error, the first of which is that the circuit court erred in deciding that there was a partnership between the complainant and the defendant. If this assignment is sustained, there can be no need for ns to consider the others. The controlling issue in the case is whether the relationship between the
We think the character of the contract may be determined by the receipts exhibited in the testimony. They furnish the only written evidence which the parties themselves have made of their agreement. Two of the writings are more than receipts. They are contracts requiring Stevens to return the money advanced by the complainant to him when the lands in which the money was invested w'ere sold. One of the receipts expressly provides that the complainant shall have, as use for the money, an equitable interest in all profits from the sale of the lands. We think these receipts disclose a purpose and agreement; to repay the money at all events. It was to be paid when the lands to the purchase of which it was to be applied should be sold, and whether they were sold at a profit or a loss. The stipulation is not that the money advanced would be1 repaid out of the proceeds of the land when sold, but would be repaid when the lands were sold; the sale of the land fixing the time of the payment of the money. The testimony of the witnesses by whom it is sought to prove Stevens’ admission of a partnership with the complainant is indefinite and uncertain, both as to what was said b.v Stevens in regard to his business relations with the complainant, and as to the time when the statements were made. They doubtless referred to the partnership in the real-estate and brokerage business of 1891-92, which had no connection with the partnership sough^to he established in this suit, or to the particular land deals in which the complainant’s money was used. "A partnership is a voluntary contract between two or more persons to place their money, effects, labor, and skill, or some, or all of them, in lawful business, and to divide the profit and bear the loss in certain proportions.” 3 Kent, Comm. 20. If it be one of the terms of the contract that each shall share in the risks and losses, and also in the profits to he realized, this constitutes them partners inter scse. These risks or interests are not required to be equal, nor is it important that they shall agree in kind. The investment may be unequal, and the parties may agree to divide the profits unequally, hut there must be a mutuality of risks, — an interest both in the profits and losses. Smith v. Garth, 32 Ala. 368. In the case of Cassidy v. Hall, 97 N. Y. 165, it is said: “It is well settled that when a party is only interested in the profits of a business, as a. means of compensation for money advanced, lie is not a partner.’' The receiving of part of the profits of a commercial partnership in lieu of or in addition to interest, by way of compensation for a loan of money, does not make the lender a partner with the borrower. Meehan v. Valentine, 145 U. S. 611, 12 Sup. Ct. 972. Thus a party may by agreement receive, by way of interest, a portion of the profits of an adventure, on money loaned to he used in the adventure, without becoming a partner. Judge Story says that the true rule is that “the agreement and intention of the parties themselves should govern in all cases.” Story, Partn. §§ 1, 38, 49.