I cannot concur in the opinion of my Brothers, nor in the affirmance of the judgment appealed from. The action is brought against W.W. Quarles and R.R. Kimmer. The complaint contains two counts; the first seeks to recover $350 due from them by account. The second seeks a recovery upon a promissory note signed "Quarles and Kimmer, per R.R. Kimmer."
As to the account, there was testimony tending to show that it was for goods purchased by Kimmer upon authority given him by Quarles.
As to the note, there was testimony tending to show that Quarles ratified the giving of it by Kimmer.
The oral charge of the court and the written charge 100 No. C, given at the request of the plaintiff, and the brief of appellee's counsel, show beyond doubt that the case was tried upon the theory that a partnership existed between the defendants.
The first error I shall notice committed by the trial court is the one overruling defendant Quarles' objection to the question propounded to Kimmer, plaintiff's witness: "To whom did you tell him to charge it to?" which the witness answered, "I told him to charge it to Quarles and Kimmer." The objection, in my opinion, should have been sustained, for the reason a partnership cannot be proved by the admissions or declarations of one of the parties claiming to be a *Page 488 partner of another. Such a declaration is res inter alios acta, or hearsay. Scott Harper Co. v. Dansby, 12 Ala. 714; Gross v. Langley, 50 Ala. 8; Clark v. Taylor, 68 Ala. 454; First National Bank v. Leland, 122 Ala. 289-295, 296, 25 So. 195.
That no partnership existed between Quarles and Kimmer on the undisputed testimony is beyond controversy. That Kimmer was not liable personally for any of the expense incurred in carrying out the enterprise is also beyond all controversy on the undisputed testimony in the case. The contract shows no more than a contract of hiring by W.W. Quarles of R.R. Kimmer. That contract was this:
Kimmer "was to manage the farm, get out timber, clear some land, and try to make the place bear the expense, and all over that would be divided equally. Quarles was to furnish land, stock, wagons, and other implements; he was to furnish everything; feed and such as that was to come back to him out of the crop or timber, until he was paid what he had advanced."
Kimmer was without interest in the land, stock, or farming implements, and it is clear that his compensation for the services he was to render was to be from the profits that were to be made as the result of the adventure or enterprise. He was not responsible personally for the expense of making the crops or the cutting of the timber. They were to be borne by Quarles, to be repaid him out of the crops or timber when sold. This state of facts was no more than hiring of Kimmer by Quarles, and not a partnership. As stated in Watson v. Hamilton,180 Ala. pp. 3-5, 60 So. 63:
"To constitute the relation inter se, the contract must extend beyond a common agreement to share in the profits. It must equally bind the parties to bear the burden of the losses."
In other words, the contract between Kimmer and Quarles, in order to constitute them partners, must have imposed the obligation upon each of them to personally bear the losses.
The contract between them on principle cannot be differentiated from the one construed by the Supreme Court in the case of Taylor v. Bush, 75 Ala. 432. In that case, Paulling and Thomas entered into a contract to divide equally the crops and proceeds of a plantation owned by Paulling, as well as the increase in all stock on the plantation. Paulling agreed to furnish Thomas all the stock, tools, and provisions on hand at the time of making the contract, free of charge and the lands free of rent. Thomas was to take charge of the plantation and premises, stock implements and tools of Paulling, manage and conduct the farm, keeping an accurate account of all expenses incurred in the management of the farm and business, and to make equal division of the net proceeds of said farm annually with Paulling. The court, speaking through Brickell, C.J., held that the contract did not create a partnership between Paulling and Thomas, and in part said:
"The test of a partnership generally is whether there is a community of interests, and a participation in losses and profits. * * * The rule is not without its exceptions; and when a party is without interest in the capital or business, and is to be compensated for his services from the profits, or rewarded by the profits, or what is to depend upon the result of a common adventure or enterprise, the rule is without application. * * * This contract is within the exception; the participation of Thomas in the profits was simply intended as compensation to him for his skill and services as the manager of the stock and plantation, and in the cultivation and gathering of the crops."
In Zuber v. Roberts, 147 Ala. 512, 40 So. 319, Zuber filed his bill for the dissolution of an alleged partnership between himself and Roberts. The contract relied upon as showing the partnership was not in writing. Roberts, having a lease on a lime quarry, entered into a contract to furnish 200 tons of limestone a day for a term of three years. He entered into an agreement with Zuber whereby Roberts was to furnish the capital for the equipment of the quarry and for stocking a commissary; Roberts was to manage the quarry and commissary, and for his services was to receive one-half of the profits derived from quarrying the stone, and one-half of the rents collected from the houses on the quarry premises. The business was conducted in the name of the Consolidated Quarry or in the name of Roberts. However, the evidence of complainant tended to snow that the name of Roberts and Zuber was used in conducting the quarry business, and that some bills of lading for lime rock were made out in that name. It further showed that goods for the commissary were purchased in the name of Paul Roberts. The court, speaking to this state of facts, said:
"While the evidence shows a community of interest in the profits, it does not satisfactorily show that under the arrangement and conduct of the business there was to be any community in the losses. * * * The facts in the present case are very much like those in the case of Taylor v. Bush, 75 Ala. 432, where there was a contract for the conduct of a farm; the agreement providing that one party should furnish the farm and certain tools, etc.; the other to conduct it, keep an account of all expenses, and to make equal division of the net proceeds."
The court, after indulging in the quotations from Taylor v. Bush and Stafford v. Sibley, 106 Ala. 192, 17 So. 324, held that there was no partnership existing between Zuber and Roberts. See, also, Code 1907, § 4743; Stafford v. Sibley, supra; 20 R. C. L. Partnership, §§ 39, 48.
As to the account sued on, there was no joint liability by Kimmer and Quarles. If the goods purchased by Kimmer was with Quarles' authority for the carrying out the enterprise or adventure, they were advances by Quarles, for which he alone was liable; and there could be no recovery for them in *Page 489 this action, because the action is to recover upon an alleged joint liability.
As to the note, there could be no recovery unless there was a partnership between Quarles and Kimmer, or unless there was a ratification by Quarles, with full knowledge of the execution of the note by Kimmer, in the name of Quarles and Kimmer.
My Brothers hold that charge 100 No. C, given at plaintiff's request, enunciated a correct statement of the law as applied to the evidence, but that, if it be subject to the criticism of being misleading, in not clearly stating that an agreement to share the losses is an essential to create the relationship of a partnership inter se, its misleading tendencies were clearly overcome by the oral charge of the court, and by special charge 9 1/2, given at the request of the defendant Quarles. The oral charge of the court clearly stated the essential elements to create a partnership, and charge 9 1/2 was in this language:
"An agreement to share losses is as essential to create the relation of partnership as an agreement to share profits."
Charge 100 No. C was not merely misleading but abstract, as was the oral charge of the court, for the reason that it enunciated and instructed the jury as to the essential elements of a partnership. There was no partnership between Quarles and Kimmer, and the giving of it, in my opinion, was error, and that error was not cured by the oral charge of the court or by written charge 9 1/2, given at the request of the defendant Quarles. In truth, the jury was instructed solely and exclusively upon the theory of a partnership, which the testimony shows never existed.
The proposiion in the opinion of the majority of the court:
"It is not essential to the plaintiff's right of recovery in this case that a partnership between Quarles and Kimmer be shown"
— is outside of and beyond any theory upon which the case was tried. No such contention appears to have been made in the trial court or here, and no such proposition was submitted by the trial court to the determination of the jury. As stated, the whole theory of Quarles' liability was predicated solely and exclusively upon the question of partnership vol non existing between him and Kimmer, and such was the theory upon which the case was tried, and that was the question submitted to the jury for their consideration and determination. Under the instructions of the court, the jury could not have determined Quarles' liability or nonliability upon any other hypothesis, for the reason that his liability upon any other theory than that of a partnership between him and Kimmer was not submitted to them for their determination. In short, whether Quarles authorized the making of the account or ratified the giving of the note, which was denied by him, was not submitted to the jury.
For these reasons, I am of the opinion that the judgment of the lower court should be reversed, and the cause remanded.