Bucknam v. Barnum

Williams, Ch. J. The agreement in question purports to be made, not by D. Barnum & Co., or Barnum and Taylor, [72] with Smith, but by Barnum, Taylor and Smith with each - other. It was for an adventure, in which they were to be mutually interested. The purchases here were to be made by Barnum and Taylor; remittances in Texas to be procured by Smith ; and each was to have a certain portion of the nett profits of the adventure. That these profits were not equal, can make no difference in the construction of this agreement. Smith is defaulted ; but Barnum and Taylor say he was not a partner, and so judgment cannot go against them. They have a right to make this objection, although it would seem to come from Smith more properly ; but the question fairly arises, are these defendants partners, or not ? A partnership is said to be a voluntary agreement, between two or more persons, for joining together their money, goods, labour and skill, all or either of them, upon an arrangement that the gain or loss should be divided proportionably between them. Wats, on Part. 1. These defendants have joined their labour, goods, money and skill together, under an agreement that the nett profits shall be divided propor-tionably among them. It is said that the loss is not to be borne, though the profits are to be shared, among them. But if there are no profits to divide, there must probably be a loss ; and that loss, though not specially provided for in these articles, must fall upon the several parties to the agreement; that is, if there is a loss upon the goods, Barnum and Taylor must sustain it, and Smith would lose his time. They would lose upon what they brought into the concern ; and he, upon what he brought in. We think, then, that provision is made to divide the loss, as well as the profits. We have, then, the case of an adventure by three persons, fitted out for their mutual advantage, and each to do and perform certain things, and each to receive a certain share of the nett profits. And were it not said that Smith’s share was compensation for services, it would be the ordinary case of partnership agreements, where one brings in no money, but devotes his time and skill to the business. And this expression, surely, is not of much weight in the case ; because the very same words are used with respect to Taylor, who is confessedly a partner. But whatever might be the construction as between them [73] selves, the question now is as between them and third persons. These defendants are found carrying on a joint adven--ture for their mutual benefit; one contributes his time and labour, and one his money ; one is to purchase here, in his own name ; the other to procure remittances from abroad ; and out of this community of interest, each is to receive a certain proportion of the nett profits. It is difficult to see in what capacity Smith acts, if not as partner. They do not designate him as servant or agent, but treat with him as w'ith each other: and he, as well as the others, is to be paid from the common fund on which the creditor relied for his payment. Grace v. Smith, 2 W. Bla. 998. 1000. Waugh v. Carver & al. 2 H. Bla. 235. We think that the case of Everitt v. Chapman, 6 Conn. Rep. 347., and the authorities there cited, fully support the view of this case, taken by the judge at the trial. And in the more recent case of Loomis v. Marshall, 12 Conn. Rep. 70., the court did not intend to impair the authority of Everitt v. Chapman ; but on the contrary, they held that a community of profits was a test of partnership, but the partner must share in the profits as principal. P. 77, 8. Another ground for a new trial is, that the court excluded evidence derived from the books and declarations of Sanger, that the note was his property, and not the plaintiff’s. To the former an objection was made, that the books themselves were not produced ; and to the latter, that it was merely hearsay. If any thing could be proved by the books, we think they should have been produced, or some legal reason given for their non-production. But we know of no principle by which any part of this evidence could be admitted. The plaintiff seeks to recover upon this note as an indorsee and bona fide holder. To do this, he must prove that it was indorsed to him, and that it is in his possession, or account for its loss. We must suppose he has done this ; and now the defendants attempt to prove, that he is not owner, but the original promisee is owner ; and to prove this, by the books and declarations of that same promisee, — a man who is not party or privy in interest with this plaintiff — a man who is interested in supporting the claim he makes, and yet not so interested, but that he might be a [74] witness. If this was an action of trover for a horse, could it be contended successfully, that the title of the plaintiff could afJeCted, by the declarations of a third person that it was his horse, or that he credited it in his books to the plaintiff? It is said, this is the act of the party ; but it is not an act for which this plaintiff is to account. If he has suffered the note or the horse to go into the hands of Sanger, that is his act, and he must account for it; but for the acts or declarations of Sanger, he cannot be responsible. We are not aware of any principle, which would authorize the admission of this evidence. The defendants indeed claim, that Sanger is the party in interest. What effect that might have, if proved, might be a question ; but the proof of the fact depends upon the admission of this evidence ; and for such a purpose, it could no more be admitted than the declarations of a person claimed to be a partner with another, can be admitted, against that person, to prove partnership. We are satisfied that no new trial should be granted. In this opinion the other Judges concurred. New trial not to be granted.