Ellsworth v. Tartt

G-OLDTHWAITE, J. —The record shows that, on the trial below, the evidence established the fact, that the plaintiff purchased a through ticket from Montgomery to Charleston, and that over a portion of the route between those points, the defendant (Ellsworth) was the proprietor of a line of stages ; and it further shows that, by virtue of such ticket, ho recognized the right of the plaintiff to be carried as a passenger in the stages over his part of the route. Upon this evidence, we regard the charge of the court as asserting the proposition, that if the defendant was to receive any portion [736] of the money paid for tho through ticket, it made him a partner with all the other proprietors along the entire route, and rendered him responsible for losses occasioned by the negligence of any one of them. The general rule is, that tó constitute a partnership inter se between two or more, there must be a joint understanding or agreement, the effect of which is to make each a participator in the profits and losses.—3 Kent's Com. (7th ed.) 20; Gow on Part. pp. 14, 15; Post v. Kimberly, 9 John. 495. But individuals," although not partners as between themselves, may occupy a position which renders them liable to third persons as such; as where two or more hold themselves out to the public as joint partners, and are trusted as such ; or where there is a participation in the profits as principals, although by agreement between themselves they are not inter se to be liable as partners.—Bostwick v. Champion, 11 Wend. 572; S. C. 18 ib. 175. And in some cases it has been held, that an agreement, by which one is to receive an interest in the profits by way" of compensation for his services, makes him a partner as to third persons (Grace v. Smith, 2 W. Black. 998, 1000; Ex parte Rowlandson, 1 Rosc. 89 to 91; Ex parte Langdale, 18 Ves. 300; Dob v. Halsey, 16 John. 34); but it is very questionable if the rule can be sustained to that extent. — Story on Part. § 36 et seq.; Rice v. Austin, 17 Mass. 97; Muzzy v. Whitney, 10 John. 226; Loomis v. Marshall, 12 Conn. 69; Turner v. Bissell, 14 Pick. 192; Vanderburg v. Hall, 20 Wend. 70; Rawlinson v. Clarke, 15 Mees. & W. 292. The case at bar comes up to neither of these propositions. The liability of the appellant as a partner, by the charge of the court, was to depend solely upon the fact of his having the right to receive any portion of the money paid for the through ticket. Suppose the different proprietors along the route came to the understanding to appoint a common agent at each end, to receive the fare of each from passengers going through, and to give a receipt, or through, ticket; it is very clear that such an agreement would not constitute a partnership inter se, or as to third persons, and yet each proprietor would have the right to receive his proportion of the fare ; there would be, in such [737] case, no community of interest, either in the property, or the profits. '' • In the case of Bostwick v. Champion, supra, the facts were, that the defendants were engaged in running a line of stages from Utica to Rochester, the entire route being divided into sections; the occupants of each section provided their own carriages and horses, and employed their own drivers, and paid the expenses of their separate section and the tolls at the turnpike gates; and the money received as the fare of the passengers over any portion of the line, after deducting such tolls, was divided among the occupants of the several sections, in proportion to the number of miles run by each. Judge Nelson, who delivered the opinion of the Supreme Court, held that the defendants were partners as to third persons, on the ground of community of profits: that the effect of the agreement was the same “ as if each proprietor had put in a capital equal to the value of their coaches and horses, and, after deducting the expenses of running them from the aggregate receipts, divided the profits”; “ that the proceeds of the aggregate route were thrown into a common fund and divided.” The case was removed to the Court of Errors, the opinion there being placed upon the same ground by Chan-cello]’ Walworth, who concedes that “the case would be entirely different, if each stage owner was to receive and retain the passage money earned on his part of the lino, and sustain all the expenses thereof, and was only to actas agent for the others in receiving the passage money for them, for the transportation of passengers over their parts of the line : i¡, h :f .■ ase, there won hi ‘ < no joint interest, and no liability to third persons as partners.” In the case at bar, there was no community of interest in the property of the entire route, so far as the record discloses ; and the right of the defendant, under an agreement with the other proprietors, to receive his fare for his part of the route, out of the money paid to a common agent for a. through ticket, would not make him in any sense a participant in the profits of the entire route, and for that reason would not render him liable to third persons as a partner. The case of Fairchild v. Slocum, 19 Wend. 329, relied on by the appellee, has no application whatever. There, the [738] defendants were common carriers, and their undertaking was to carry the goods from New York to Ogdensburg, The contract which they entered into regulated their liability, which was not changed by the fact that they employed the vessels of other persons along all, or any portion of the route. If the defendant (Ellsworth) had contracted to carry the plaintiff to Charleston, the cases would have been analogous. From the views we have expressed; it follows, that the charge given by the court was erroneous; • and as the case stands, it would be premature to consider the other questions raised. Judgment reversed, and cause remanded.