England v. England , 60 Tenn. 108 ( 1873 )

Turney, J.,

delivered the opinion of the Court.

It was error to charge the jury, “That if defendant, England, was to receive a certain percentage on the profits, or the amount of the business done for the use of his still and tubs, he would be as to third persons a partner, since the amount to be received would rise and fall with the amount of the profits or business.” The case presented by this language is one of hiring. It is not necessary, as contemplated in the charge of his honor, taken as a whole, that the amount of hire or rent should be a certain fixed sum or amount; it is competent for parties hiring or renting property, to contract with a view to speculative compensation. For instance, a clerk in a store, a draftsman in a law office, a druggist prescriptionist, may contract to do those things within their respective spheres, for a percentage on the income, the amount of capital invested or net profits.

It is to-day of frequent, almost universal habit, for land-owners to rent their farms for certain proportions of crops in all these instances, the amount to be received depends upon “rises and falls, with the amount of the profits or business.” Still the intention of the parties to such contracts never contemplates a partnership. A contrary rule would make four-fifths of the real estate owners partners of their tenants without either having even entertained such purpose.