Bowman v. Bailey , 10 Vt. 170 ( 1838 )

The opinion of the court was delivered by

Phelps, J.

The plaintiffs cannot be considered as partners, strictly speaking. They did not share in the profits and loss of the business, in the sense in which the terms are usec* as constituting the criterion of partnership. The terms, when used in reference to this subject, denote the ultimate profjt Or loss of the operation. Here the plaintiffs were to divide the gross earnings of the boat, without reference to the usual and customary expenditures. Such a connection has been repeatedly held not to constitute a partnership. They were indeed to share equally in the loss occasioned by bad debts, but this would merely render it necessary to substitute the word receipts for tearnings. They were also to share equally in losses ; but b.y this, we do not understand the ordinary expenses Of the business, but something'accidental and contingent. Now, in settling the account between thesé persons,no reference would be had to ultimate profit or loss ;■ but Cummings would be entitled to one half the receipts, as a compensation for his services and expenses, in running the •boat, and the plaintiffs to the other half, for the use of the same-, The sharing equally in the risk of contingencies would not, o'f its'elf; make their connexion a partnership; The case falls within the decision in Boardman v. Keeler, 2 Vt. R. 65. But although the plaintiffs were not partners, yet they were jointly and equally interested in the contract with the defendant, and are, therefore, competent to Sustain a joint actiOn-. They were all to be benefitted by the contract-, and all acted as ostensible parties to it. Under these circumstances, it is not important whether they are strictly partners Or not. It is objected, that, in this view of the case, Hall should also have been joined. But this, by no means, follows. He appears-, indeed, to have been a part owner of the boat, but he was no party either to the contract between the plaintiffs, or to that between the plaintiffs and defendant. Ñor had he any direct interest in either-. He might call his co-tenants to account for the use of the boat, but he could have no claim to the avails of either contract as a party to it.

The judgment of the County Court must, therefore, bO affirmed.