2 See Stewart v. Forbes, 1 Hall & Twells, 472; s. c. 1 Mac. & Gord. 137. In this case Lord Cottenham, referring to the case of Peacock v. Peacock, 2 Camp. 45, where Lord Ellenborough held, that in the absence of all positive stipulations in the particular case, a presumption of an equal division of profit would arise, said: "In that case it was properly held, that in the absence of any contract between the parties, or any dealing from which a contract might be inferred, it would be assumed, that the parties had carried on business on terms of an equal partnership. . . . But what would have been the decision in Peacock v. Peacock, if the books and accounts, instead of absolute silence as to the shares of the partners in each year, had described the shares in which the partners were interested in the business, and had attributed to the plaintiff four-sixteenths only of the shares of the business ? These entries are as conclusive of the rights of the parties as if they had been found prescribed in a regular contract." See also Thompson v. Williamson, 7 Bligh (n. s.), 432; Webster v. Bray, 7 Hare, 177; Story on ment expressly declare that the property is furnished by one partner, and the parties are to have a community of interest in the net profits, it will constitute a partnership only as to the profits.1 But wherever the parties themselves do not intend to create a partnership, they will not be responsible to each other as partners; for the intent is the key to the contract.2 On the other hand, where the parties agree to form a partnership, and actually proceed to carry into execution the joint business, they become partners, though they do not understand the conditions of the agreement alike.3
§ 286. Where the several partners disagree in regard to the propriety of a particular partnership transaction, the decision is with the majority in number, although the interest or shares of each be different; provided such rule be consistent with the articles of copartnership. The minority are, however, entitled to notice, and are to be consulted. The articles of a copartnership cannot, however, be altered, except by the unanimous consent of all.4 If there be a balance of opinion, no action can be made by either party, in respect to the matter of difference; and if, therefore, such disagreement be in respect to the essential objects and purposes of the partnership, it amounts to a suspension thereof, as to all persons having notice of the disagreement.1
Partnership, § 24, and notes; Roach v. Perry, 16 111. 37; Donelson v. Posey, 13 Ala. 752.
1 Meyer v. Sharpe, 5 Taunt. 74; Smith v. Watson, 2 B. & C. 401; Hes-keth v. Blanchard, 4 East, 144; Ex parte Hamper, 17 Ves. 404; Mair v. Glennie, 4 M. & S. 240. See Stocker v. Brockelbank, 3 Mac. & Gord. 250; Clement v. Hadlock, 13 N. H. 185; Julio v. Ingalls, 1 Allen, 41; Hall v. Leigh, 8 Cranch, 50; Story on Partnership, § 27.
2 Wish v. Small, 1 Camp. 331, note; Dry v. Boswell, 1 Camp. 329, 330; Story on Partnership, § 30; Hazard v. Hazard, 1 Story, 371. See Hawkins v. Mclntyre, 45 Vt. 496 (1873).
3 Cook v. Carpenter, 34 Vt. 121 (1861).
4 Const v. Harris, Turn. & Russ. 496; Story on Part. § 123; Lloyd v. Loaring, 6 Ves. 773; Davies v. Hawkins, 3 M. & S. 488; Kirk v. Hodgson, 3 Johns. Ch. 400, 405; Watson on Part. ch. 4, p. 194, 2d ed.; Minnit v. Whinery, 2 Bro. P. C. 323; 5 Bro. P. C. by Tomlins, 489; Green v. Miller, 6 Johns. 39; 5 Co. 63 a; Coll. on Part. B. 3, ch. 1, p. 261, 2d ed.; Grindley v. Barker, 1 Bos. & Pul. 229; Vice v. Fleming, 1 Y. & J. 227, 230; Rooth v. Quin, 7 Price, 173; Willis v. Dyson, 1 Stark. 164; Attorney-General v. Davy, 2 Atk. 212; The King v. Beeston, 3 T. R. 592; Lord Galway v. Matthew, 1 Camp. 403; s. c. 10 East, 264; 3 Kent, Comm. lect. 43, p. 45, 4th ed.; Gow on Part. ch. 2, § 2, p. 52, 3d ed., and note; Livingston v. Lynch, 4 Johns. Ch. 573, 597; Withnell v. Gartham, 6T. R. 888.
§ 287. We have already considered the rights growing out of the relation of partners to third persons; and we now shall consider the rights and liabilities of partners to each other. Every partner is liable to the partnership for losses and injuries resulting from his gross negligence, unskilfulness, or misconduct; and the measure of skill and diligence required of him is the same as that required of an agent for hire, namely, reasonable diligence and ordinary skill.2 A partner is bound, however, to exercise his best discretion, and to observe a perfect good faith in all his transactions, or he will be responsible to his copartners.3 So, also, he must not violate the articles of partnership; nor transact any business on his own account, incompatible with the interest of the partnership;4 nor exceed his power and authority; for in such case, if loss result, he will be personally responsible therefor.5 Besides this, he is bound to keep strict accounts of his individual transactions in behalf of the partnership, and also of his receipts, and to keep them open for inspection.1
1 Willis v. Dyson, 1 Stark. 164; Story on Part. § 123. One partner has power to collect and discharge a claim due the firm, although the other partners have forbidden the debtor to pay such partner. Noyes v. New Haven, etc, Railroad Co., 30 Conn. 1 (1861).
2 Story on Part. § 169; Lefever v. Underwood, 41 Penn. St. 505; Blisset v. Daniel, 10 Hare, 493; Story on Agency, § 183; ante, Agency. In Lefever v. Underwood a partner mixed funds of the firm with his own, depositing them in his own name in a bank which failed; and it was held that he was liable to the copartner for his share of the money, the latter being ignorant that the funds had been thus used.
3 Russell v. Austwick, 1 Sim. 52; 3 Kent, Comm. lect. 43, p. 51, 4th ed.; Story on Part. § 174; Carter v. Horne, 1 Eq. Cas. Abridg. Account, A. pl. 13; Fawcett v. Whitehouse, 1 Russ. & Myl. 132, 148; Hitchens v. Congreve, 4 Russ. 562; Featherstonhaugh v. Fenwick, 17 Ves. 298; Dougherty v. Van Nostrand, Hoflfm. 68, 69, 70; Burton v. Wookey, Madd. & Geldart, 367; Knight v. Marjoribanks, 11 Beav. 322; 2 Macn. & Gord. 10; Crawshay v. Collins, 15 Ves. 218, 227; Jefferys v. Smith, 3 Russ. 158.