On Motion for Rehearing. On motion for rehearing it is hereby ordered:
(1) That the following be added to the decision heretofore promulgated in the above entitled action:
Further Opinion on Petition for Rehearing. On motion for rehearing defendants contend that the court[12] overlooked passing upon the objection that the lower court erred in denying the motion for non-suit in that there was a failure of proof because it is alleged that plaintiff owns the horses whereas the record discloses that plaintiff and Stanley V. Kearl were partners and that the partnership owned the horses in question and that they were not owned by plaintiff individually. They rely upon the cases of Schoenborn v. Williams, 83 Mont. 477,272 P. 992, and Thompson v. Shanley, 93 Mont. 235,17 P.2d 1085.
On the issue of the partnership the record discloses the following: Plaintiff testified that: "He [Kearl] was a partner in this way. I paid him a monthly wage. I gave him a percentage of the profits at the end of the year, when we had a profit."
"Q. Was he a partner in the horses? A. Yes, in that way. I provided the money."
He was asked: "Q. You gave him an interest in the horses? A. No, I gave him a monthly wage and a percentage on the profits, so that he really did not have an interest in the horses, so far as that goes." Smith's brand was on the horses and he had control. Plaintiff said that he and Kearl were partners in the horses in the way that he had explained. He testified that if there was a loss Kearl stood no part of it.
This proof was not sufficient to show a community of title in the horses. There was sufficient evidence to show they were owned by plaintiff and it was only the profits in which there was a community of interest. When horses were sold plaintiff first received his individual investment therein and the profits only were divided between the two.
The contention that the horses are owned by the partnership *Page 299 cannot be sustained within the rule stated in Weiss v. Hamilton,40 Mont. 99, 105 P. 74, and State v. Grimsley, 96 Mont. 327,30 P.2d 85.
(2) That the motion for rehearing be and it is hereby denied.
Mr. Chief Justice Johnson and Associate Justices Morris, Adair, Angstman and Cheadle concur.
Rehearing denied March 12, 1946.