§ 278. We now proceed to the consideration of special contracts of agency, in which the powers, duties, and liabilities of the parties are modified by their peculiar relationship. This class we shall divide into the following classes: 1st, Partners; 2d, Executors and Administrators; 3d, Trustees; 4th, Guardian and Ward; 5th, Corporations; 6th, Auctioneers; 7th, Brokers and Factors; 8th, Consignees; 9th, Supercargoes; 10th, Ship's-husbands; 11th, Masters of Ships.
§ 279. The law relating to Partnership differs from the general law relating to agency principally in the fact that each partner has an interest in common with the other partners, in the whole property, business, and responsibilities of the partnership; which a mere agent has not.
§ 280. A partnership is a contract to share the profits of any business.1 As between the parties thereto, it cannot be created by the mere operation of law, but depends solely upon the fact of agreement. No third person can be introduced into a firm but with the consent of the other partners.2 Neither a joint tenancy, nor a tenancy in common, of itself, constitutes a partnership; and, therefore, the representative of a surviving partner does not become one of the firm.3
§ 281. The same rules which apply to the capacity of persons to contract generally, apply to the parties to the particular contract of partnership.4
1 See Noyes v. Cushman, 25 Vt. 390; Putnam v. Wise, 1 Hill, 234.
2 Story on Partnership, § 5; Collyer on Partnership, B. 1, ch. 1, § 1, p. 4, 5, 2d ed.; Ex parte Barrow, 2 Rose, 252, 255; Crawshay v. Maule, 1 Swanst. 508, 509, and the learned note of the reporter, p. 509.
3 Pearce v. Chamberlain, 2 Ves. 33; Story on Partnership, § 3; 3 Kent, Comm. lect. 43, p. 25.
4 Story on Partnership, ch. 2, per tot. Ante, ch. 2, per tot.
§ 282. The consideration on which the contract of partnership is founded may be either money or property, or mere labor or skill.1 In every partnership, where there is any property, it is common stock, and is first liable for the partnership debts. After they are paid, and the partnership is dissolved, it is subject to a division among the members, or their representatives, according to agreement.2
§ 283. Partnerships are either universal, general, or limited and special. The first species is where all the property, labor, and skill of both parties are employed for their mutual benefit. The second species is, where the partnership is confined to general business. The third, species is, where the partnership is limited to some one branch of business. Partnerships are also either private partnerships, or joint-stock companies, either incorporated or unincorporated. There is no difference between them, except that corporations are governed strictly by the terms of their charter, and the stockholders or shareholders are not personally liable for the acts or contracts of the officers or members, unless expressly declared to be so by their charter.3 So, also, there are ostensible partners, who are and appear as partners; nominal partners, who appear as partners, but are not; and dormant or secret partners. Partnerships may be created in regard to any business, except a mere personal office of trust; and may be created by deed, by parol, or by tacit assent.4
§ 284. We propose to consider, first, what constitutes a partnership, as between the partners, and their duties to each other; and, second, what constitutes a partnership as to third persons, and the corresponding duties.
§ 285. Wherever there is both a community of interest in the capital stock and in the net profits, the contract of partnership is created so as to bind the partners.5 It is not, however,
1 Story on Partnership, § 16; 3 Kent, Comm. lect. 43, p. 25; Puffen-dorf. Droit de la Nat. Lib. 5, ch. 8, § 1; Pothier, Contrat de Societe, No. 1; Dob v. Halsey, 16 Johns. 34.
2 2 Kent, Comm. lect. 43, p. 24; Story on Partnership, § 16.
3 See post, Corporations.
4 Story on Partnership, ch. 5; U. S. Bank v. Binney, 5 Mason, 176, 183. 5 See Duryea v. Whitcomb, 31 Vt. 395 (1858); Brigham v. Dana, 29
Vt. 1 (1856). "It does not seem to be requisite to the constitution of a strict partnership, that each partner, as between themselves, should be liable necessary that both of these circumstances should concur, in order to constitute a partnership; for even if the whole capital stock be the exclusive property of one of the parties, yet if there be a community of profit and loss, the parties will be partners. So, also, there are some partnerships where there is no common property, or stock employed in the business; as in the case of mere factors or brokers. If there be no agreement, express or implied, as to the partnership property, it will be considered as the common stock of both parties; and if there be no agreement as to the proportional share of the profits which each partner shall receive, both partners are to share equally.1 This last presumption would only seem to arise where there is not only no actual contract as to the apportionment of profits, but no evidence growing out of the modes of dealing of the parties, or of the books and accounts, from which a contract might be inferred.2 If, however, the agreeto share indefinitely in the losses of the concern. An agreement to share in the profits, and consequently in the losses, as they, affect the adventure, will ordinarily be held sufficient to constitute a strict partnership." Brigham v. Dana, 29 Vt. 1, 9, per Redfield, C. J. See also Bucknam v. Barnum, 15 Conn. 67; Loomis v. Marshall, 12 Conn. 70; Bond v. Pittard, 3M.&W. 357; Smith v. Small, 54 Barb. 223 (1869).
1 Reid v. Hollinshead, 4 B. & C. 867; Collyer on Partnership, B. 2, ch. 1, § 2, p. 112, 113, 2d ed.; Ex parte Gellar, 1 Rose, 297; Soule v. Hayward, 1 Cal. 345; Sims v. Willing, 8 S. & R. 103; Musier v. Trumpbour, 5 Wend. 274; Everitt v. Chapman, 6 Conn. 347; 3 Kent, Comm. lect. 43, p. 24, 25; Story on Partnership, § 27, 28; Wadsworth v. Manning, 4 Md. 59. But see Hitchings v. Ellis, 12 Gray, 449 (1859).