4 Pick. 234; Rice v. Austin, 17 Mass. 197, 203; the Frederick, 5 Rob. Adm. 8. See Niehoffy. Dudley, 40 111. 406 (1866).
4 The cases on this point are exceedingly contradictory and confusing, and the distinctions so subtle that they are hardly perceptible. The distinction is stated to be between " an interest in the profits themselves, as profits, and the payment of a given sum of money, in a proportion to a given quantum
§ 297. Again, it would seem, where an arrangement is made by which a party undertaking labor and services in reof the profits; as the reward of, and as a compensation for labor and services." Gow on Part. ch. 1, p. 18, 3d ed. Lord Eldon uses similar language, in Ex parte Hamper, 17 Ves. 404, where he says: " The distinction is so thin, that I cannot say it is established upon due consideration." See also Ex parte Rowlandson, 1 Rose, 89, 91, 92. It seems rather difficult, however, to perceive any essential difference between the two cases. Is it not the same thing, in its practical operation, to receive a certain proportion of the profits, or to receive a certain sum proportional to the profits ? In each case there is actually the same interest in the amount of profits; the share or compensation fluctuates with the profits; and the result is the same. If a person is to receive twenty per cent on the profits, is it not the same thing as if he is to receive twenty cents on every dollar of the profits ? And yet this illustration answers the distinction. This whole distinction is utterly unfounded in legal principle, and unsupported by any reason of public policy. The equitable rule of construction, and that which obtains in all other contracts, is, that the intention of the parties shall furnish the key of their contract; and that no agreement shall be construed in contradiction of such intention, if it be apparent. This rule is applied to the contract of partnership, whenever the question is between the parties themselves; but whenever the question is in respect of their liabilities to third persons, an artificial rule is introduced, contradicting the general rule of interpretation, and of a purely arbitrary nature. This rule, having been once founded, could not easily be overthrown; but common sense, struggling hand in hand with common law, and rebelling against so artificial a doctrine, created a distinction, by which it was enabled again to replace the equitable rule of interpretation, which had been ejected by the exception. This distinction, however, is so subtle as to create more difficulty than even the arbitrary rule. Although it is manifest that its operation, in relation to persons receiving a compensation proportioned to profits, so far from being anomalous, is, in reality, in coincidence with the general doctrines of interpretation. The contradiction in the cases grows out of a desire of reconciling the exception with the general rule. There seems, in truth, to be no possible ground for the exception; for the intention of the parties at once distinguishes cases of mere agency from those of partnership, and is the only sound test of liability.
The doctrine is, however, well settled, and is as stated in the text. See Grace v. Smith, 2 W. Bl. 998; Story on Partnership, § 23 to 38, note 2, to § 36; Waugh v. Carver, 2 H. Bl. 244, 245; Bond v. Pittard, 3 M. & W. 357; Cheap v. Cramond, 4 B. & Al. 663, 670; Saville v. Robertson, 4 T. R. 720; Cutler v. Winsor, 6 Pick. 335; Bailey v. Clark, 6 Pick. 372; Turner v. Bissell, 14 Pick. 193; Chase v. Barrett, 4 Paige, 148, 159. See, however, Thompson v. Snow, 4 Greenl. 264, and Loomis v. Marshall, 12 Conn. 69. But see Hesketh v. Blanchard, 4 East, 144, 146; Mair v. Glennie, 4 M. & S. 240; Wish v. Small, 1 Camp. 331, note; Perrott v. Bryant, 2 spect to a business is to receive, by way of compensation, a certain share of the gross profits, after certain specified deductions are made, but is not to be rendered liable for any losses, or to be entitled to an account or specific lien or preference in payment, that the contract of partnership is not created.1 In such a case, where the party has no responsibilities for losses as partner, compensation would be received by him solely in the character of agent, and not of partner.2
§ 298. An agreement between several persons to make a joint purchase of goods does not make them partners, unless they are to be jointly concerned in the net profits arising from the subsequent disposal of them.3 Thus, where three persons agreed to purchase a quantity of oil, one of them to take one-fourth, a second to take one-fourth, and the third, whom they empowered to purchase, to take the remaining two-fourths, it was held, that this did not make them partners.4 The subscribers of certain specified sums, for the building of a seminary or other such object, do not thereby become partners, or jointly liable beyond the amount of their subscriptions for the debts incurred for such enterprise beyond the subscription list.1
Younge & Coll. 61, 67, 68; Withington v. Herring, 3 Moo. & P. 30; Champion v. Bostwick, 18 Wend. 175, 184. See also the cases cited in relation to this subject in Story on Partnership, ch. 4; and particularly Pearson v. Skelton, 1. M. & W. 504; s. c. Tyrw. & Grang. 848, in which the criterion of partnership is clearly pointed out as being in a participation in the net profits, or a participation in the gross profits or receipts. See also Denny v. Cabot, 6 Met. 82; Cutler v. Winsor, 6 Pick. 335; Macy v. Combs, 15 Ind. 469 (1860).
1 Denny v. Cabot, 6 Met. 82; Bradley v. White, 10 Met. 304, 305. See also Pott v. Eyton, 3 C. B. 32; Dunham v. Rogers, 1 Barr, 255; Rawlinson v. Clarke, 15 M. & W. 292; Rice v. Austin, 17 Mass. 197.
2 Ibid. See also Vanderburgh v. Hull, 20 Wend. 70; Turner v. Bissell, 14 Pick. 192; Loomis v. Marshall, 12 Conn. 69; Conklin v. Barton, 43 Barb. 435; Voorhees v. Jones, 5 Dutch. 270; Reynolds v. Hicks, 19 Ind. 113; Catskill Bank v. Gray, 14 Barb. 471; Pratt v. Langdon, 12 Allen, 544; Parker v. Canfield, 37 Conn. 250 (1870).
3 Grace v. Smith, 2 W. Bl. 1001; Hoare v. Dawes, 1 Doug. 373; Do-mat, De la Societe, Liv. 1, tit. 8, § 3, 7; 1 CEuvres de Domat, p. 265, 266; Baldwin v. Burrows, 49 N. Y. 199 (1872). See also Iliff v. Brazill, 27 Iowa, 131 (1869).
4 Coope v. Eyre, 1 H. Bl. 37. See also Dunham v. Rogers, 1 Barr, 255.
§ 299. Again, an agreement between several parties to become partners at some future time, or communications and agreements with a view to the future formation of a partnership, or conditional agreements to become partners, do not constitute the parties partners, until the time appointed for the actual commencement of the partnership, or the happening of the condition.2