held on the ground that he had held himself out as one, or authorized or assented to his being so held out. Nixon says that he knew appellant was a partner when the books were ordered, but he does not state how he knew it, and it may well be inferred that he only knew from what Guibout told him at the time the books were ordered. The question whether the appellant had been with his consent, held out as a partner to the plaintiff, was one of fact for the jury; and it was important that in determining that question the jury should be confined to whatever competent testimony was before them. The statement in Guibout's deposition that he told Nixon that appelant was one of the firm without proof that appellant authorized the statement, was incompetent, and in view of all the evidence in the case was calculated to mislead the jury. A party has a right to insist that irrelevant and incompetent testimony shall be excluded. Incompetent testimony in a deposition, though not objected to when the deposition is taken, may be objected to on the trial. The objection is not as to mere form, it is substantial: Cooke v. Orne, 37 Ill. 186; Lockwood v. Mills, 39 Ill. 602.

Nor did appellant lose his right to have the evidence excluded by failing to object to it when read from the deposition. When incompetent testimony gets into the case in the shape of depositions or otherwise, it is the duty of the Court, when required, at any stage of the trial, to exclude it or direct the jury to disregard it: Pittman v. Gaty, 5 Gilm. 186; Greenup v. Stoker, 2 Gilm. 688; Wickenkamp v. Wickenkamp, 77 Ill. 92.

The refusal of the Court to exclude the evidence on appellants motion was material error, and, while we are much inclined to the opinion that there was no legal evidence before the jury to support a verdict that appellant was jointly liable, still we prefer to rest the reversal on the error above specified, and remand the case for such further action as the parties may desire to take.

Reversed and remanded.

SHARING OF PROFITS BUT NOT LOSSES

DURYEA V. WHITCOMB

3 Vt. 395 (1858)

This was an action at law brought by A. & W. E. Duryea against Whitcomb, to recover what plaintiffs claimed to be their share of a joint enterprise entered into by plaintiffs, defendant and one Lewis. Plaintiffs and Lewis resided in New York city and Whitcomb in Vermont. The agreement was that Whitcomb should, on the joint account, buy

potatoes in Vermont and New Hampshire, to be sent to New York and other markets. Whitcomb was to have a fixed price per bushel for buying, and the net profits were to be divided in accordance with the contributions of the parties. The auditor who heard the case found defendant indebted to plaintiffs in the sum of $845.45. Defendant claimed that the arrangement constituted a partnership, and that therefore the affairs could not be adjusted in this form of action. The auditor found that the parties said nothing about partnership and that neither of the parties supposed they were forming a partnership or intended to form one. Defendant appealed.

ALDIS, J. As this is a case where the rights of the partners inter se merely are concerned, where no question as to third persons is involved, the criterion to determine whether the contract is one of partnership or not, must be, what did the parties intend by the contract which they made as between themselves?

If we regard the agreement itself, as set forth in the auditor's report, it is clearly a partnership. The agreement was verbal, but by the finding of the auditor may be considered as in writing at this time. Giving to the contract, as stated in the report, the same construction that we should to articles in writing of the same tenor, it appears to us to have every ingredient of a partnership.

The parties all furnish a share of the capital, Whitcomb one-half, Lewis one-quarter, the Duryeas one-quarter. They jointly own the property when purchased. It is purchased in order to be sold again for their joint and mutual benefit, thereby negating the idea of separate control and disposition of their interests in the property purchased, and of separate interests in the proceeds. Each is to share in the final profit or loss; at the close of the season the profits or losses are to be divided, to Whitcomb one-half, to Lewis one-quarter, to the plaintiffs a quarter. Each is to aid in selling, and to contribute his aid, skill, and knowledge to get the highest price.

The case of Griffith v. Buffum, 22 Vt. 181, 54 Am. Dec. 64, post, where the defendants were held to be partners as between themselves, is not so strong to show a partnership as this; for there the agreement to share in the losses seems to have been implied whilst here it is expressed.

The fact that each was to be accountable for his own sale, amounts only to this, that each should sell for cash; if either did not, he was to be accountable for his sale as cash. The proceeds of the sales by each would belong to them jointly, not severally. This provision is as consistent with an agreement for a partnership as with any other: Noyes v. Cushman, 25 Vt. 390. So that Whitcomb was to have the control

of the potatoes, and to run them to the best market, taking the advice of Lewis and Duryeas on the subject, is, when we consider where the parties resided, where the potatoes were to be bought, and to what markets they might be sent, and that Whitcomb was to buy them, as consistent with a contract of partnership as with any other.

I. This agreement does not belong to the class of cases where the parties are jointly interested in certain proportions in the property purchased, but not in the final profits or losses; where each of the part owners has the power of separate disposition of his interest. Such is the case of Coope v. Eyre, 1 H. Bl. 37, post, a leading illustration of the class.

II. It is not of the class where a party receives a portion of the profits as a compensation for his labor as an agent or servant. Each furnished a portion of the capital, each was a part owner of the property when purchased, and of the proceeds when sold. Neither could be said to be the servant or agent of the other. An agent who receives a share of the profits as a compensation for his services, is not expected to share in losses; if there are no profits he loses his labor or wages, but he loses no more, though there are further losses to be borne by the partners.

Of this class is Kellogg. v. Griswold, 12 Vt. 291; and Mason v. Potter, 26 Vt. 722.

III. Nor is it a case where a share of the gross or net earnings is to be paid as a compensation for the use of capital, or as rent; and where the party receiving such compensation has no interests in the business, the property and the proceeds, but only a right of action against the other parties. Here the parties jointly contributed capital, labor, and skill, were joint owners of the property from the time of its purchase till the final division of profits or loss. No severance of their interests could be had, no ascertainment of their respective shares or interests could be made till a final accounting. They must have relied on the property and its proceeds to secure to each his final share, no matter by whom the property might be sold, or its proceeds held.

Hence the cases of Tobias v. Blin, 21 Vt. 544; Bowman v. Bailey, 10 Vt. 170, and Ambler v. Bradley, 6 Vt. 119, do not apply. Of the same class are Denny v. Cabot, 6 Met. (Mass.) 92; Holmes v. The Old Colony R. R. Co., 5 Gray (Mass.) 58; Loomis v. Marshall, 12 Conn. 69, 30 Am. Dec. 596, and various other cases cited by counsel.

It is said, however, that the auditor finds that the parties did not intend to form a partnership, and that such intention must govern.

It is with contracts of partnership as with all other contracts, that as between the parties to them their intention must govern. Hence an express stipulation in a contract that the parties thereto shall not thereby become partners, is binding and of great significance in giving

construction to the instrument, especially if the terms are doubtful or susceptible of more than one meaning.

I. It is to be noted that in this case there was no such express stipulation. The auditor's report says "at the time of the arrangement in New York, August 20, 1854, nothing was said about a partnership, and neither of the parties at that time supposed they were forming a partnership, or intended to form a partnership." As nothing was said about a partnership, the parties could not have stipulated that their contract should not create one.

II. The report states what was the arrangement of August 20, 1854. That was a contract for a partnership. If their contract was for a partnership by necessary legal construction (which we have found that it was), and they intended to make the contract (and this appears from the report), the legal effect of their contract could not be varied by their not supposing it to be what it was. The further statement in the report that they did not intend to form a partnership seems inconsistent with the other facts. One is at a loss to perceive how the auditor could discover such an intention when nothing was said about a partnership, and when the contract, which they made, was a partnership. Probably the fair construction of the report is that the parties were not aware of the legal extent and cbligation of the contract into which they entered.

As the contract imports a partnership, we must hold, in the absence of any express stipulation and of any other circumstances to show the contrary, that they intended to create the relation which the contract

expresses.

IV. The action is book account. The accounts presented for adjustment are all partnership accounts. None of them are properly chargeable on book. The case of Green v. Chapman, 27 Vt. 236, has settled the construction of the statute of November 18, 1852, viz; that where there are no items properly chargeable on book, the action of book account will not lie for the judgment of other items proper for the action of account.

The result is that the judgment of the county court is reversed and judgment rendered for the defendant to recover his costs.

EVIDENCES OF INTENTION

BEECHER V. BUSH

45 Mich. 188 (1881)

COOLEY, J. The purpose of the action in the Court below was to charge Beecher as partner with Williams for a bill of supplies purchased

for the Biddle House in Detroit. The facts are all found by special verdict, and are few and simple. Beecher was owner of the Biddle House, and Williams proposed in writing to "hire the use" of it from day to day, and open and keep it as a hotel. Beecher accepted his proposals and Williams went into the house and began business, and in the course of the business made this purchase. The proposals are set out in full in the special verdict.

The question is whether by accepting the proposals Beecher made himself a partner with Williams in the hotel business; and this is to be determined on the face of the writing itself. It is conceded that Beecher was never held out to the public as a partner, and that the bill of supplies was purchased on the sole credit of Williams and charged to him on the books of the plaintiffs below. The case, therefore, is in no way embarrassed by any questions of estoppel, for Beecher has done nothing and suffered nothing to be done which can preclude him from standing upon his exact legal rights as the contract fixed them.

Nor do we understand it to be claimed that the parties intended to form a partnership in the hotel business, or that they supposed they had done so, or that either has ever claimed as against the other the rights of a partner. It is perfectly clear that many things which are commonly incident to a partnership these parties meant should be wholly excluded from their arrangement. Some of these were of primary importance. It is plain, for example, that Beecher did not understand that his credit was to be in any way involved in the business, or that he was to be in any way involved in the business, or that he was to have any interest in the supplies that should be bought, or any privilege to decide upon them, or any legal control whatever until proceeds were to be divided, or any liability to losses if losses were suffered. These are among the most common incidents to a partnership; and while some of them, and possibly all of them, may not be necessary incidents, yet the absence of all is very conclusive that the parties had no purpose whatever to form a partnership, or to give to each other the rights and powers, and subject each other to the obligations of partners. In general this should be conclusive. If parties intend no partnership the Courts should give effect to their intent, unless somebody has been deceived by their acting or assuming to act as partners; and any such case must stand upon its peculiar facts, and upon special equities.

It is nevertheless possible for parties to intend no partnership and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners. The law must declare what is the legal import of their agreements, and names