Majority
[19261 ROBERT PORTER & SONS LIMITED
APPELLANTS; (PLAINTIFFS)
.......................
AND
*Feb. 3. J.
ANOTHER
*Mar.
(DEFENDANTS)
....................
RESPONDENTS. AND
WILLIAM WASHBROUGH FOSTER
(DEFENDANT).
ON APPEAL FROM THE APPEAL BRITISH COLUMBIA
Judgment of the Court
DUFF J.-I see no reason to differ from the conclusion of the majority of the Court of Appeal founded on *PRESENT:-Anglin C.J.C. and Duff, Mignault, Newcombe and Rinfret JJ.
the authority of White v. Tyndall (1), that the covenant in question, assuming there was no partnership, is a joint covenant.
The argument based upon the stipulation in the agreement that " vendor " and " purchasers " in the agreement shall include the executors, administrators and assigns of each of them, is conclusively answered by the observations of Lord Herschell at pp. 276 and 277. The question raised by the allegation of the appellants that the debt sued upon is a partnership debt, presents more room for controversy.
Foster and Miller unquestionably intended to buy the property, to sell it again at an enhanced price, and thereby to make profit.
Indeed, the sole object of purchasing the land was to dispose of it profitably. No doubt they intended to share the outlay equally between them. As regards the purchase money, the law would, of course, give to either of them a right of contribution against the other for any payment on the joint debt in excess of his own proper share, and on a sale, each would be entitled to share in the price according to his interest.
The inevitable result, if the property was held in common and sold, would be that, as between Foster and Miller themselves, the right to share in the profits and the legal responsibility for losses would be equally distributed. But these consequences all flow from the fact that these two persons were jointly responsible for the purchase money, and that each was entitled to an undivided moiety in the equitable estate vested in them, as the result of the contract of purchase.
Partnership, it is needless to say, does not arise from ownership in common, or from joint ownership. Partnership arises from contract, evidenced either by express declaration or by conduct signifying the same thing. It is not sufficient there should be community of interest; there must be contract. In the first chapter of Story's book on Partnership, there is this passage:- S.C.R.
Pothier's comment on the words " si a duobus simul empta res sit " is this: " Scilicet non animo contrahendae societatis " 17 Pand.
The real question is whether, from the evidence before us, one ought to infer an agreement in the juridical sense that the property these two persons intended dealing with was to be held jointly as partnership property, and sold as such. Is this what they contemplated? Had they in their minds a binding agreement which would disable either of them from dealing with his share-that is to say, with his share in the land itself-as his own separate property? A common intention that each should be at liberty to deal with his undivided interest in the land as his own would obviously be incompatible with an intention that both should be bound to treat the corpus as the joint property, the property of a partnership. English law does not regard a partnership as a persona in the legal sense. Nevertheless, the property of the partnership is not divisible among the partners in specie. The partner's right is a right to a division of profits according to the special arrangement, and as regards the corpus, to a sale and division of the proceeds on dissolution after the discharge of liabilities. This right, a partner may assign, but he cannot transfer to another an undivided interest in the partnership property in specie.
Now Foster's arrangement with MacDonald was obviously not a transfer of a partner's right to his share of the profits, nor did it involve the introduction of Mac- Donald by agreement with Miller, as a partner in Miller's place. Nothing in the correspondence points to this. And I cannot accept Mr. Donaghy's contention that the transfer to MacDonald was a transfer resulting from an understanding between Foster and Miller. Miller's letters indicate very clearly, and in Foster's evidence there is nothing inconsistent with this, that both Miller and Foster as-