Bulfinch v. Winchenbach , 85 Mass. 161 ( 1861 )

Bigelow, C. J.

The agreement between the principal defendant and the claimant for running the vessel on shares embraced all the essential elements of a copartnership. They were to carry on the business jointly; each was to contribute his time and services to the prosecution of the joint undertaking ; both were to be liable for the debts; and they were to share the net profits equally. It is not a case where the agreement to share the profits is made for the mere purpose of fixing a compensation for services to be rendered by one of the parties, and no other rights or liabilities are to be assumed by him in the conduct of the joint business. But the stipulations of the parties place each of them on an equal footing, so that both are to share alike in the burdens and benefits of the joint undertaking. The case is wholly unlike that of Thorndike v. De Wolf, 6 Pick. 120, on which the plaintiff relies to sustain his right to hold the funds in the hands of the trustees. There it was decided that two persons, owners of a ship and cargo in distinct proportions, without any agreement to share in the profit or loss which might ultimately arise from a voyage, were not copartners but tenants in common of goods which were purchased and brought home by the master of the vessel. The vital distinction between that case and the one at bar is, that in this case there was an express agreement to share the net profits of the joint undertaking. Exceptions overruled.