action in his own name. And if an agent or servant appear to be the principal, and act as such, and become personally responsible on the contract, he may sue in his own name thereon; for his responsibility gives him an interest in the contract or transaction (m).

It has also been decided, that if an agent purchase goods for a principal, and by his authority, but in his (the agent's) own name, and state to the vendor (C. D.) that there is an unnamed principal; and the agent under the same authority agree to resell the goods; the agent may, in his own name, sue the vendor, (C. D.,) for the non-delivery of the goods; although the principal renounced the contract, and by a subsequent arrangement between the agent and principal, the latter was to have no interest therein (n).

A plaintiff who has professedly made a contract as agent for a third person, cannot sue thereon as a principal, without giving notice to the defendant, before the action be brought, that he (the plaintiff) is the party really interested (0).

2ndly.-OF CONTRACTS AS THEY RELATE TO PARTNERS (p). 1. Of the Formation of a Partnership.

1. As between the parties themselves.

2. As regards the public.

2. What Contracts by one Partner during the Partnership bind the Firm.

3. Of the Dissolution of a Partnership; and of Contracts subsequently made.

1. Of the Formation of a Partnership.

1. Of a partnership as between the parties themselves. It is proposed to consider, under this division, those cases in which an actual partnership may arise between parties in reference to each other, without regard to the instances in which individuals may be liable, in consequence of their acts, to the public, as partners, although no partnership has in reality been formed between them.

A partnership may be created by deed, or by writing not under seal, or it may exist by parol contract. A parol agreement

(p) See Vin. Ab. Partners; Gow's, Watson's, Montagu's, and Collyer's Treatises on Partnership; 3 Chitty's Com. L. 225; Selw. N. P., Partners.

for the continuance of a partnership beyond the term of one year, would be inoperative under the statute of frauds, 29 Car. 2, c. 3, s. 4 (p). An action cannot be maintained for the breach of an agreement to become a partner, without proof of the specific terms of the intended partnership (q). And it seems that equity will not decree the specific performance of a contract for a partnership, however perfect such contract may be; but will leave the party to his remedy at law; at least in those cases in which the other party might immediately dissolve the partnership if formed (r). But where a person who was a partner in a firm already created, upon specific terms, agreed that the plaintiff should be received as a partner in the concern, as to a certain share thereof, the court held, that an action for not causing the plaintiff to be received as such partner, was maintainable; and attached no weight to the objection made by the defendant, that there was not a sufficient degree of certainty in the terms of the agreement (s).

A partnership in general, constituted between individuals, by an agreement between them to share the profits and losses of their joint undertaking, either in a general or particular concern. And it seems that the right to participate in profits, and the liability to contribute to losses, create a partnership, however unequal the shares may be, and although one party has no direct interest in the capital of the firm (t); or may have no right to any definite aliquot proportion of the profits (u). But a participation in profits and losses, whatever may be its effect with regard to the rights of strangers, does not create a partnership between the parties, if the facts negative any intention or agreement on their

(p) See post, Index, tit. Frauds, Statute of, ante, 57, 8.

(q) Figes v. Cutler, 3 Stark. R. 139, cor. Abbott, C. J.; Gale v. Leckie, 2 Stark. 107. See ante, 61. A parol executory agreement to sell a share in a partnership, would seem to be void under the Statute of Frauds, at least where part of the share or interest has reference to goods which constitute the partnership stock, or the assignment of realty. A share in a firm is a chattel interest, per Lord Hardwicke, 3 Atk. 385.

(r) Herey v. Birch, 9 Ves, 357. See Burton v. Lister, 3 Atk. 385, per Lord

Hardwicke; Anon. 2 Ves. 629; 1 Montag. on Partn. 48. A partnership presumptively commences from the date of the agreement to become partners. Williams v. Jones, 5 B. & C. 108.

(s) M'Neill v. Reid, 9 Bing. 68; 3 Moor & S. 89, S. C.

(1) See Ex parte Hodgkinson, 19 Ves. 291; Ex parte, Langdale, 18 id., 300. Morisset v. King, 2 Bur. 891. The presumption is, that each partner is to share equally in profits; Peacock v. Peacock, 16 Ves. 49.

(u) Ex parte Church in re Starkie, 8 Bing. 469.

part, that it should have such operation (x); although where the existence of a partnership between individuals, quoad strangers, is established, the law will presume that the parties have agreed to be partners inter se; yet this presumption may be repelled (y). Thus the loan of money by A. to B., on a bond securing the repayment with 5l. per cent. interest, and a covenant that the lender should also have a share in the profits of a trade, which the borrower conducted with a third party, but should not be liable to losses, does not create a partnership, but amounts to a mere usurious contract; there being no bonâ fide intention to become partners (z).

An agreement between A., a merchant, and B., a broker, the latter having neither money nor credit, that they should order certain goods, to be shipped upon an adventure, and paid for by A.; and that, if any profit should arise from them, B. should have half for his trouble; or an agreement that B. should purchase goods for A., and should receive, for his trouble, a certain proportion of the profits, in lieu of brokerage, and should bear a proportion of the losses; does not necessarily constitute a partnership as between themselves, but only an agreement for a compensation of trouble, &c., the parties not appearing to have a partnership in contemplation; although B. might be rendered liable, by such arrangement, to third persons, as a partner (a).

In Reid v. Hollinshead (b) it appeared, that A., a merchant in London, by letter, directed B., a broker in Liverpool, to purchase goods, and stated that B. was to be allowed to be one-third interested therein; he acting in the business free of commission. B. agreed to purchase the goods on these terms. Having so done, there was much correspondence between the parties, in which the transaction was mentioned as a joint purchase and concern, &c.— and B. sent a policy against fire to A., and stated that the goods were warehoused "for their joint security." It was held that they were partners in the goods, even as between themselves.

(x) Smith v. Watson, 2 B. & C. 401; 3 D. & R. 751, S. C.

(y) Peacock v. Peacock, 2 Camp. 45; 16 Ves. 49, S. C.

(z) Morse v. Wilson, 4 T. R. 353; when otherwise, the parties contemplating a partnership, and the jury negativing usury in the deed, &c., Enderby v. Gilpin, 5 Moore, 571, affirmed

in error in K. B.; 5 B. & Ald. 954; 1 D. & R. 570, S. C.

(a) Hesketh v. Blanchard, 4 East, 144; Smith v. Watson, 2 B. & C. 401; 3 D. & R. 751, S. C.; cited post, and see cases there.

(b) 7 D. & R. 444; 4 B. & C. 867, S. C.

The usual agreement between the captain and seamen of a ship employed in the whale fishery, that the produce of the voyage should be divided in certain proportions between the owner, the captain, and crew, does not constitute a partnership between them (c).

An association of several persons, and a common subscription amongst them, for the purpose of obtaining an Act of Parliament. to make a railway, constitute a partnership (d). And a partnership is created between two persons who agree to run a coach, and that each shall find horses for particular parts of the road, the profits of each party to be calculated according to the number of miles covered by his own horses (e).

The effect of becoming a subscriber to an intended company, in regard to the creation of a partnership between the members, as well inter se, as in reference to the public, was fully considered in a recent case (ƒ). It appeared that a prospectus was issued for a distillery company, with a capital of £600,000, and 12,000 shares, and to be conducted pursuant to the terms of a deed to be drawn up. All persons who did not execute the deed within thirty days after it was ready, were to forfeit all interest in the concern No more than 7500 shares were ever allotted; only 2300 persons paid the first deposit; only 1106 the second; and only 65 signed the deed; and the directors, after the time for paying the second instalment had elapsed, advertised that persons who had omitted to pay, had forfeited their interest in the concern. It was held, that an application for shares, and payment of the first deposit did not constitute a partner, one, who had not otherwise interfered in the concern; and that the insertion of his name by the secretary of the company, in a book containing a list of the subscribers, was not a holding out as a partner. The Chief Justice observed,-"If the right to participate in the profits of a joint concern is to be taken, as undoubtedly it ought to be, as a test of a partnership, these defendants were not entitled at any time to demand a share of profits, if profits had been made;

(e) Wilkinson v. Frasier, 4 Esp.

182.

(d) Holmes v. Higgins, 1 B. & C. 74; 2 D. & R. 196, S. C. As to the public, when, post.

(e) Fromont v. Coupland, 3 Moore, 319; 2 Bing. 170, S. C. See, how

ever, post 190.

(f) Fox v. Clifton 4 M. & P. 676; 6 Bing. 776; 9 id., 115, S. C., after the third trial. And see Bourne v. Freeth, 9 B. & C. 632; Dickinson v. Valpy, 10 B. & C. 123, cited post.

inasmuch as they had never fulfilled the conditions upon which they subscribed We think the matter proceeded no further, than that the defendants had offered to become partners in a projected concern, and that the concern proved abortive before the period at which the partnership was to commence; and therefore, with respect to the agency of the directors, which is the legal consequence of a partnership completely formed, we think the directors proceeded to act before they had authority from these defendants; for they began to act in the name of the whole, before little more than half the capital was subscribed for, or half the shares were allotted. The persons, therefore, who contracted with the directors, must rest upon the security of the directors who made such contract, and of those subscribers, who, by executing the deed, have declared themselves partners; and of any who have by their subsequent conduct recognised and adopted the acts and contracts of the directors; but they have not the security of the present defendants, who are not proved by the evidence, to stand in any one of such predicaments."

A., being as a partner entitled to a share of iron works, and of the premises on which they were carried on, agreed for a valuable consideration to assign to B., his interest in the property and business. B. interfered and acted as a partner, but afterwards he assigned his share, and gave notice to the other partners that he had withdrawn from the business; and when called on to complete his purchase, resisted the performance of the contract successfully, on the ground that a good title could not be shewn. It was held in equity, that B., as between him and his other partners, was to be treated as a partner, and was liable to contribute to the partnership losses, until the time when he gave notice of his withdrawal from the concern, and assigned his share; -that his liability ceased from that period;-that the assignment of his share, though made to an insolvent person, was not for that reason the less effectual in putting an end to his liability;— and that the assignee not having been acknowledged a partner, or permitted to act as such, did not, by his acceptance of the assignment, incur any liability as between himself and the co-partners (g).

(9) Jefferys v. Smith, 3 Russ. R. A partner may give another person an interest in his share, but

158.

cannot make him a partner, unless accepted by the firm. Bray v. Fromont, 6 Madd. 5.