Burckle v. Eckart , 1 Denio 337 ( 1845 )

By the Court, Bronson, Ch. J.

The contract on which the plaintiff sues is in writing. Eckart has not signed, and is not boufid by it, unless he was a member of the house of James Gibb & Co.; and that he was a member was not proved at the time the judge allowed the contract to be read in evidence. The plaintiff himself proved, by reading the stipulation made for that purpose, that the firm of James Gibb & Co., at the time of the execution of the contract, consisted of James Gibb, Thomas Gibb, and Elisha Lane. If this proof was not absolutely fatal to the action, still there was no satisfactory evidence that Eckart was a partner. The witness Christian J. Burckle testified, that when negotiating the contract, James Gibb said, Eckart had a share in the business; and Eckart said it was so. According to the cross-examination, they merely said, that Eckart was interested: they did not say that he was a member of the firm, or a partner in the house of James Gibb & Co This is the strongest evidence—indeed, all the evidence there was at that time, tending to charge Eckart as a partner. There are many ways in which he might be interested in the business to which the contract related, without being a partner; and the witness, who is the father of the plaintiff, and seems to be.a principal, rather than a subordinate, on that side of the case, does not pretend that he thought Eckart a partner, or supposed he would be hound by the contract of James Gibb & Co. It is evident from the correspondence Avhich brought the parties together, that Eckart Avas not regarded as a partner. And besides, there was then no motive for Avishing to bind him ; for, as the Avitness tells us, he had failed in business, and Gibb was rich. The evidence Avas quite too loose and inconclusive to charge Eckart; and the first exception Avas Avell taken.

This difficidty Avas not obviated by the proof Avhich afterAvards came out touching the alleged partnership. The testimony of Duncan McPherson shows precisely Avhat was the real relation betAveen Eckart and the house of Gibb & Co.; and as his testimony is entirely consistent with all the other evidence in the case touching that subject, we need not look beyond Avhat he has said. Noav, according to his evidence, Eckart was not a member of the house of Gibb & Co. But as the house required assistance in the out-door part of their business, they employed Eckart to attend to the purchasing and forAvarding of Avestern produce; and, as a remuneration for his trouble, he Avas to receive one-fourth part of the profits coming to Gibb <fc Co. from that branch of their business. He acted in all matters connected with the business under the orders of Gibb & Co. He exercised no OAvnership over the property purchased; and was never looked upon or considered as a partner. It is quite clear that there was no partnership as betAveen the parties to this arrangement; and I think there Avas none in relation to third persons. There was no community of interest in the capital stock: and.Eckart did not act as a principal trader, but only as the agent or servant of Gibb & Co. He was not clothed Avith the usual powers, rights, or duties of a partner; but was subject to the orders of his employers. He had nothing to do with losses, except as they affected the profits out of which he was to be paid ; and he was only to take a share of the profits in the lieu of wages, or as a mode of getting compensation for his services. I shall not go over the cases where this question has been considered, nor examine the nice distinctions which may be found in the books; for, so far as this court is concerned, it has been settled, that a mere agent or servant, who is to obey orders, and has no interest in the capital stock, will not be a partner, even as to third persons, merely because he is to be compensated for his services, by receiving a share of the profits which may arise from the business in which he is employed. (Vanderburgh v. Hull, 20 Wend. 70. And see Story on Partn. 49, 56, 72; Collyer on Partn. 14, 18.) It is undoubtedly true as a general rule, that a communion of profits will make men partners, and draw after it a liability for losses. But it is abundantly settled that the rule is not universal: and the exception which will best reconcile the cases, is least liable to abuse, and is so distinctly marked that it can be easily administered, is that which allows one man to employ another as a subordinate in his business, and agree to pay him out of profits; if any shall arise, without giving the party employed the rights, or subjecting him to the liabilities of a partner.

There was no conflict of testimony. It is true that Eckart was interested in the business ; but not as a partner. As there •was no dispute about facts, the counsel was right in insisting as matter of law, that Eckart was not a partner; and the judge should have so charged the jury.

There are several other questions' in the case; but as this goes to the foundation of the action, they need not be considered.

New trial granted.