Farmers' Insurance Co. v. Ross ( 1876 )

Gilmore, J.

Did the court of common pleas err in holding that, under the contract set out on the record, Ross and Lennan were partners in the manufacture of bricks ?

The contract being set out and admitted, whether there was a partnership between them or not became a question of law, which it was the duty of the court to decide. Everitt v. Chapman, 6 Conn. 347.

A partnership exists when two or more persons contribute their property or services to be employed jointly in some enterprise or business, the profit or loss of which is to be shared among them in some fixed proportion. Walker’s Am. Law, 227.

Partnership is a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.” 3 Kent, 24.

The contract in question shows that each of the parties to it had agreed to contribute certain designated materials, skill, or labor to be used in the manufacture of bricks, and that the product was to be divided "in certain proportions. But it is said that the product in this case was neither profit nor loss, and hence that this element of a partnership is wanting. Upon this point Mr. Justice Story says: “When each of the parties contributes labor and services and materials in the manufacture of any articles of trade, and the articles, when made, are to be equally or proportionably shared between them, they will be deemed partners inter sese; for the articles manufactured, and so to be divided, may Avell be deemed the profits or losses of their joint undertaking and business.” Story on Partnership, 46, sec. 27. 1 f this doctrine be correct, then the bricks, when made,, were clearly partnership property, and would have been held to be so, although the parties may have contemplated a division of the bricks in the proportions mentioned in the contract. But the ground upou which the decision in this respect is placed, is that a division of the bricks and a separate sale by each of his respective share was not contemplated by the parties nor provided for in the contract. Indeed, the contract shows that such was not the intention of the parties. They contemplated and provided for a joint sale of the bricks, and a division of the proceeds in accordance with the proportions fixed by the contract. Under the contract as modified by the acts and consent of the parties, each had power to biud the other by a sale of bricks-from the common stock, and each would have been held liable to account to the other for the proceeds of such sales. This feature, in connection with the other terms of the contract, clearly constituted the defendants partners for the purposes of sale and divisions of the proceeds thereof; and they would consequently be jointly liable for the breach of a contract of sale made by either of them. There are cases which go further than this. Thus, where two persons agreed to burn lime on shares, one to fill a kiln with stone, and the other to burn the kiln and furnish the necessary wood for that purpose, the lime to be equally divided between them, it was held that a technical partnership existed between the parties. Musier v. Trumpbour, 5 Wend. 274. See also Everitt v. Chapman, 6 Conn. 347. We think the court of common pleas properly held as a matter of law that the-defendants were partners under the contract set out. If' they were partners inter sese, they were also partners as to third parties. Wood & Oliver v. Vallette & Lewis, 7 Ohio St. 172.

Motion granted; judgment of the district court reversed, and that of the common pleas affirmed.