4 Burton v. Wookey, Madd. & G. 367; Story on Part. § 177; 3 Kent, Comm. lect. 43, p. 51, 4th ed.; Long v. Majestre, 1 Johns. Ch. 305; Glassington v. Thwaites," 1 Sim. & Stu. 124.
5 Coll. on Part. B. 2, ch. 2, § 2, p. 131 to 161, 2d ed.; Stoughton v. Lynch, 1 Johns. Ch. 467.
§ 288. In case one of the partners have advanced capital to the concern, interest will be allowed where there is an agreement or understanding to that effect;2 but whether, in the absence of any evidence of such an understanding, interest will be allowed is not clearly settled. It has been held in America, that neither partner, in such case, will be entitled to interest on advances before a general settlement or dissolution;3 but a contrary opinion has been intimated in a late case by an eminent English judge.4
§ 289. The articles of partnership are to be strictly adhered to, and are to be construed according to the general rules of interpretation, applicable to contracts in general, and stated in a subsequent part of this treatise.5 They are also liable to be controlled in equity by the acts of the partnership; and such as have not been acted upon are treated as if they had never existed.6 The partnership commences from the date and execution of the articles, unless some other time is therein specified; and this rule cannot be varied by parol evidence of a contrary intention.7 It exists, unless limited, or dissolved by agreement, until the death of one of the partners.
1 Coll. on Part. B. 2, ch. 2, § 1, p. 121; Rowe v. Wood, 2 Jac. & Walk. 553, 558; Ex parte Yonge, 3 Ves, & B. 36; Goodman v. Whitcomb, 1 Jac. & Walk. 589; Story on Part. § 181.
2 Hodges v. Parker, 17 Vt. 242; Winsor v. Savage, 9 Met. 346; Millau-don v. Sylvestre, 8 La. 262.
3 Lee v. Lashbrooke, 8 Dana, 214; Jones v. Jones, 1 Ired. Eq. 332; Honore v. Colmesnil, 7 Dana, 199; Waggoner v. Gray, 2 H. & Munf. 603; Dexter v. Arnold, 3 Mason, 284.
4 Millar v. Craig, 6 Beav. 433. See also, as to this point, Hodges v. Parker, 17 Vt. 242; Stoughton v. Lynch, 1 Johns. Ch. 467; Beacham v. Eckford, 2 Sandf. Ch. 116.
5 Story on Part. § 190; Gow on Part. ch. 2, § 4, p. 109, 3d ed. See England v. Curling, 8 Beav. 129; Whitworth v. Harris, 40 Miss. 483.
6 Jackson v. Sedgwick, 1 Swanst. 460, 469; Story on Part. § 192.
7 Featherstonhaugh v. Fenwick, 17 Ves. 299; Booth v. Parks, 1 Molloy, 466; Crawshay v. Collins, 15 Ves. 218; U. S. Bank v. Binney, 5 Mason, 176.
§ 290. This brings us to the consideration of what constitutes a partnership as to third persons; and in these cases the real intent of the parties constitutes no criterion of responsibility, for the law will not permit them, by a private arrangement, to limit their responsibility to others. Whatever may be their intent, therefore, a partnership will be created between themselves as to third persons, unless the whole arrangement and agreement between them either exclude some of the essential ingredients of a partnership; or unless it be clearly a case of mere agency, or joint tenancy.1 Thus, if A. and B. should agree to carry on business for their joint profit, and to divide the profits between them, but B. should bear all the losses, and should agree that there should be no partnership between them, as to third persons dealing with the firm, they would be held partners, although inter sese they would be held not to be partners.2 The existence of a partnership cannot, however, be proved by the profession or act of one only, if proof of the acknowledgment and admission of the others whom he represents to be his copartners cannot be made out actually or by implication;3 nor can it be proved by general reputation.4 But successive acts or declarations, or acknowledgments made by each of several defendants, tending to show a partnership, are admissible, and are equivalent to a joint declaration.1 And they may make themselves partners as to third persons, though they be not such strictly between themselves.2
1 Story on Partnership, § 30 et seq.; 3 Kent, Comm. lect. 43, p. 25, 26; Coope v. Eyre, 1 H. Bl. 37; Gow on Partnership, ch. 1, p. 10, 11, 3d ed.; ib. ch. 4, p. 153; Smith v. Watson, 2 B. & C. 401; Harding v. Fox-croft, 6 Greenl. 76; Jackson v. Robinson, 3 Mason, 138; Hoare v. Dawes.
1 Doug. 371; Post v. Kimberly, 9 Johns. 470; Holmes v. United Ins. Co.
2 Johns. Cas. 329; Gibson v. Lupton, 9 Bing. 297; Hall v. Leigh, 8 Cranch, 50.
2 Per Mr. Justice Story, in Hazard v. Hazard, 1 Story, 371, and cases cited there. See also Waugh v. Carver, 2 H. Bl. 235; Hesketh v. Blan-chard, 4 East, 144; Dob v. Halsey, 16 Johns. 34; Cheap v. Cramond, 4 B. & Al. 663. See Wood v. Vallette, 7 Ohio St. 172 (1857); Bromley v. Elliot, 38 N. H. 287; Dwinel v. Stone, 30 Me. 384.
3 Welsh v. Speakman, 8 Watts & Serg. 257. See Davis v. Evans, 39 Vt. 182 (1866). The giving a firm note by one, in the absence of the other, for goods purchased by both, presents a strong prima facie case of partnership in an action by another on a contract made by one in the name of the firm. Drennen v. House, 41 Penn. St. 30 (1861). See Brewster v. Sterrett, 32 Penn. St. 115 (1858); Hogg v. Orgill, 34 Penn. St. 344 (1859).
4 Carlton v. Ludlow Woollen Mill, 27 Vt. 496 (1854).
§ 291. In all cases where a partnership is created by agreement between the parties themselves, they are liable, as partners, to third persons. Their public liability, however, extends far beyond their private liability to each other, and may arise in contravention of their mutual intent, and in cases where, as between themselves, they would not be partners. Their liability, as partners, to third persons, may arise in two ways; either by a participation in the profits of the partnership, or by holding themselves out as partners.3
§ 292. First. Whether persons be actually partners or not, they will be responsible as partners to all persons to whom they hold themselves out by their words or conduct, as such.4 And if a person should, either by expressly professing to be a partner when he is not, induce any one to credit the partnership, or should, after his withdrawal from the firm, permit his name to be used by them, he would be personally liable.5 The fact that persons conduct business as if they were copartners, is sufficient primd facie evidence of a copartnership, and no written articles are necessary.6