Bradbury v. Smith , 21 Me. 117 ( 1842 )

The opinion of the Court was afterwards drawn up by

Shepley J

— Whether a partnership includes the capital stock, or is limited to the profit and loss, must be determined from the agreement and intention of the parties. In this case the agreement signed by the plaintiffs declares, that the “ special partner has contributed $1500 as capital to the common stock.” And there can be no doubt, that it was their intention to form a limited partnership under the provision of the statute of 1836, c. 211. If it be admitted, that a general partnership was not created by a failure to comply with the provisions of the seventh section of the act, which requires, that “ the names of the general partners only shall be inserted without the addition of the word company or any other general term: ” the act would still require, that the special partner should contribute a sum in cash, and that it should become a portion of the capital stock of the partnership. The act provides, that “ the general partners only shall transact business,” and the goods must be purchased by them. The contracts and bills of purchase would be between the seller and the partnership as the purchaser, and the goods would become the property of the partnership.. And this would but carry into effect the agreement and intention of the parties ; the partnership becoming a debtor to the special partner for the amount of cash by him contributed. A loss of the goods in the shop by fire, or otherwise, would not have fallen exclusively upon the special partner as the sole owner, but upon the partnership. Although at the time of the commencement of this partnership the capital stock was all contributed by the special partner, the general partner would afterward be daily contributing to it by his time and attention to the business. It cannot therefore be correct to assert, that the capital stock at the time of the attachment, after several months’ continuance of the partnership, remained as the sole contribution of the special partner. It might have happened, by a rise in the value of the goods first purchased, and by large profits on the sales of these and of other goods subsequently purchased, that the capital would have been more than doubled during the Lwo years provided for its continuance. And as the special partner was to receive as profits a sum only equal to the legal interest on the money advanced, the general partner might at that time become entitled to a larger portion of the capital stock. There is no evidence, that the goods attached were a part of those originally purchased by the cash advanced by the special partner. And if they were not, they must have been purchased on the credit of the partnership, or by funds partly accruing from the services of the general partner in transacting the business.

Whether the special agreement, or the intention of the parties to it, or the legal effect of their acts, be considered, the result is the same; that the goods in the shop .must be regarded as the property of the partnership. • And it has been already decided in the case of Douglass v. Winslow, 2 App. 89, that such goods are liable to be attached for a separate debt of one of the partners.

The verdict is to he set aside . and a nonsuit entered.