Majority
p. 66ROBERT M'CABE vs. JOHN MORRISON.
Headnote
A retailer’s license is not evidence for the party taking it out, of his interest in the store.To constitute a partnership there must be an agreement both for profit and loss.
A dormant partner need not be joined as a party plaintiff, if there be no privity of con-, tract between him and the defendant.
Case. Narr. in assumpsit. Pleas, non-assumpsit and discount.
The action was on book account for goods sold and delivered to
p. 67
defendant by plaintiff, who is a merchant. The defence set up was, that plaintiff was in partnership with a certain Harry Conelly, and could not sue alone; and, 2d., payment to Conelly.
To rebut the evidence of partnership, plaintiff replied and offered, inter alia, the license granted to M‘Cabe, as a retailer of merchandize, which was objected to, and rejected as the party’s own act.
On the question of partnership and the right to sue alone, it was contended for the plaintiff, that there must be an agreement, both as to profit and loss, to constitute a partnership; and even if Conelly was proved to be a partner, he was a dormant one; the rule as to which is, that there is no necessity of using the name of a dormant partner in suing. 1 Chitty PI. 8; Leveck ép Pollard vs. Shaftoe, 2 Esp. Rep. 468; Cary on Partnership, 97 ; 5 Law Library, 39.
On the other side it was contended, that this rule must be taken with this qualification, that a dormant partner need not be joined unless privity of contract could be shown, (2 Saund. PI. Sf Ev. 701,) which it was insisted' had been done in this case.
Booth and R. H. Bayard for plaintiff.
Macbeth, Read, Jr., and J. Jl. Bayard, for defendant*
left the question of partnership to the jury; defining it to be an association for the purpose of trade, where each party is to receive and bear his proportion of profit and loss; and instructing them, as to the other question, that it depended on the fact whether Conelly was a known or a dormant partner. If he was unknown-to the defendant, who dealt with McCabe' alone, then McCabe had the right to sue him alone.-
The plaintiff had a verdict*-