Majority
p. 526Cushman and others vs. Bailey & Conkling.
Headnote
C. loaned B. $100(1 for a year, leased him a building to be occupied as-a store for the same period, and stipulated that his son should attend the store as B.’a clerk without specific compensation:—In consideration whereof, B. agreed to invest $3000 in the store, conduct it during the year, and at the expiration thereof repay the $1000 and surrender the premises if required, accounting for the business done, and rendering to C. one equal third of all the profits, &c. Held, sufficient to constitute a partnership, especially as to third persons.Assumpsit by the plaintiffs against Bailey and Conkling, tried at the New-York- circuit, December 18th, 1840, before Edwards, C. Judge. The sole question was, whether certain articles of agreement dated April 15th, 1837, between the defendants, constituted them partners in trade, and so jointly liable in this .case. The terms of the agreement sufficiently appear in the opinion of the court. The circuit judge heldy that the defendants were thereby constituted partner's, to which the defendants excepted; and a verdict having been rendered for the plaintiffs, the defendants no%z moved for a new trial on a bill of exceptions.
S. J. Wilkin, for defendants.
J. S. Bosworth, for plaintiffs.
By the terms of the agreement in question, Conkling loaned to Bailey, for one year, the sum of $1000, demising to him a store, and stipulating that his son should faithfully attend it as a clerk for the same term without specific compensation ; in consideration whereof Bailey agreed to invest a capital of at least $3000 in the business of store keeping, manage it during the same term, and at its expiration render an account of the business, and if required, pay over to Conkling the $1000,
p. 527
siiirender possession of the store, and pay Conkling one equal third part of all profits made by the business of the store,, and the business necessarily and properly connected with it. This agreement was acted upon; and I am of opinion, constituted a partnership. The agreement winds up with the essential criterion of a partnership, an indefinite share by "moieties in the profits. It is scarcely possible that an agreement can be so framed, and not enure as a contract of partnership, especially with regard to third persons. (Collyer on Partnership, 43, a, and 44, Am. ed. of 1839. Grace v. Smith, 2 W. Bl. 998. Waugh v. Carver, 2 H. Bl. 235, 246, 7. Champion v. Bostwick, 1 8 Wendell, 175. Dob v. Halsey, 16 John. 34 .)
New trial denied.