The owner of a two hundred acre tract of land near a city entered into a written agreement with four other persons, part of whom were real estate brokers, whereby the latter, at their own expense, were to lay out and plat the land into lots and blocks, advertise and sell the same, and pay the first party the sum of $50,000, after which the balance derived from the sale of the lots was to be divided equally among the parties, each taking one-fifth: Held, that by the contract the parties created a partnership in the enterprise of platting, advertising and selling the land, and that the court, on bill filed by one of the partners, had the power to order the residue of the land undisposed of sold and the proceeds distributed, and also the power to set aside deeds made by the partner holding the legal title to parties having notice of the contract and not purchasing in good faith for an adequate consideration.1

"I can find no case in which a person has been made liable as a dormant or sleeping partner, where the trade might not fairly be said to have been carried on for him, together with those ostensibly conducting it, and when, therefore, he would stand in the position of principal towards the ostensible members of the firm as his agents."2

"The law as to partnership is undoubtedly a branch of the law of principal and agent; and it would tend to simplify and make more easy of solution the questions which arise on this subject, if this principle were more constantly kept in view."3

Mr. Lindley sums up the effect of the leading case of Cox vs. Hickman, in this way: "Prima facie the relation of principal and agent is constituted by an agreement entitling one person to share the profits made by another to an indefinite extent; but this inference is displaced if it appears from the whole agreement that no partnership or agency was really intended."

"No elaborate device or ingenious contrivance can give the whole advantage of a partnership without subjecting the parties thereto to all the liabilities of a partnership." 4

The advantages of a partnership are a share in the profits and good will of a business gained and sustained by a means relating to the controlling influence of a master over an agency.

1 Winstonley et al., vs. Gleyre etal.,

146 III., 27. 2 Lord Cranworth, Ames' Cases on

Partnership, page 91.

3 Lord Wensleydale, Ames' Cases on Partnership, page 92.

4 Pooley vs. Driver, in Ames'Cases on Partnership, p. 104.

A person who is entitled to a share in the profits of a business as compensation for services rendered, as reimbursement for money loaned or advanced, or in lieu of rent for premises leased, is not thereby a partner in fact. So of the tenant who divides the crops with the landlord, so of the salesman who receives a commission on goods sold, and so of the manufacturer who receives a certain share of the proceeds of the goods sold as compensation for manufacturing.

In Parker vs. Fergus,5 the owner of an opera house leased it and was to receive as rent one-half of the profits. Held, that this did not constitute a partnership. It was also held that he did not hold himself out as partner by acting as ticket agent and treasurer of the lessee and having his name printed on bills as treasurer.

As one partner cannot sue another at law on balance due without an express promise to pay the same, the question of partnership arose in the following case: Blue agreed to furnish his farm and a certain amount of teams and labor. Leathers was to labor and manage the tillage, and the parties were to divide the crop in proportion of two-thirds to Blue and one-third to Leathers.

This was not a lease but was a joint enterprise between Blue and Leathers. Nevertheless it was held not to be a partnership. It was joint enterprise but not a business; it was not an extended commercial transaction like the platting, advertising and selling of lots.

5 43 III., 437.

The court said: "Here is no trading, no risks, no contingent profits, but simply an agreement for joint tillage, and a division of the produce of the farm in kind." 6

Common law courts have no jurisdiction in controversies between partners but such suits must be brought in courts of chancery. So the question frequently arises in suits at law: Are the parties to the suit partners, or is it a single adventure not constituting a business? The liabilities of parties to a joint adventure differ not at all from those of partners except as to the presumed authority of an act of agency, and as to the mode of compelling a settlement between the parties. Presumptively partners are mutual agents, but joint contractors are not, and the authority of one joint contractor to act for another must be proven.

Certain parties entered into a joint enterprise for fishing for one venture. They joined their seines and other fishing apparatus and in a single haul secured a large amount of fish. In a suit at law on the contract the defense of a partnership and consequent lack of jurisdiction of the court was interposed. On appeal the court said: "It may be regarded as a single adventure, in which the parties were only jointly interested. If so, it lacks all the elements to constitute a partnership, in the legal sense of that term." 7

In an action to recover for supplies furnished a hotel, it was sought to hold the Old Colony Railroad responsible as a partner. The defense was that the contract between the parties interested in the hotel disclosed no intention to enter into such a relationship on the part of the railroad. The contention was that the railroad was a dormant partner; and as there was no pretension that the railroad had held itself out as a partner in the business, the interpretation of the contract was the determining factor in the controversy.

6 Blue vs. Leathers, 15 III., 31.

7 Hurley vs. Walton Admr., 63 III., 261.

The contract in question in substance was as follows: The Old Colony Railroad, being the owner of the Samoset House, leases it and the furniture therein to Parker and Tribou who are to pay the corporation out of the net profits of keeping the house $500 annually and one-half of said profits; the said Parker and Tribou are to keep account books open to the inspection of the corporation and to give their time and attention to the business free of charge; they are to pay all bills but to have free passage over the railroad for themselves and employees and free carriage for hotel supplies; they agree not to assign or underlet without the written consent of the corporation and at the termination of their occupation of the hotel to return the furniture in good order and condition, ordinary wear and tear and loss by fire excepted. Held, that this contract created no partnership.8