This was an appeal from the judgment of justice Dingle, in an action of assumpsit for work and labor, goods sold, c. The pleas were non-assumpsit and set-off of a debt due from Waples to defendant. The case turned on the question whether there was a partnership between Dodd Waples.
Ridgely, for plaintiff, on this question cited Gow onPart. 1; 2 H. Blac. 244; 2 Wm. Blac. 998; 17 Ves. 404, 412.
Cullen, for defendant, contra, cited Coll. on Part. 8, 14 b.; 4 East Rep. 144; Gow 20; 1 Com. LawRep. 20. What constitutes a partnership is a question of law; whether a partnership exists, is a question, of fact.
A partnership is a voluntary contract between two or more persons for joining together their money, goods, labor and skill, to carry on business jointly, with an agreement to divide proportionally in the profits, and also the losses. There must be an agreement, either express or implied, reciprocally to participate in the losses as well as the profits of the concern. This communion of profit and loss is essential to constitute a complete partnership as well between the parties, as in respect to strangers, who deal with them. There must he a common interest in the stock of the company, and a personal responsibility for the partnership engagements. The shares of the parties in the concern must he joint; but it is not necessary they should be equal. The sharing of the profits without also sharing the loss, will not constitute a partnership. Therefore, where a party furnishes his labor and agrees to receive a share of the profits as a compensation for his labor, or in lieu of wages, he is not a partner. *Page 486 So where a party agrees to give his services in conducting the business of another, and to receive for his services a salary and a certain commission or per centage on the profits arising from the goods sold, the salary to be deducted from the commission, it does not constitute a partnership.
If there was an agreement that Waples was to find the shop and the materials, and Dodd was to furnish his skill and labor, and to receive as a compensation for such skill and labor, one-half or any other certain share of the sales of the articles manufactured, such agreement does not constitute a partnership. But if the agreement was that Waples should find the shop and the materials, and Dodd was to furnish his skill and labor, and both had a common interest in the stock of the concern, with an agreement to divide the profits and losses between them, such an agreement constituted a partnership.
Verdict for defendant.