We think his Honor properly declined to submit the evidence to the jury on the allegation of a partnership (194) between R. T. Smith and the defendant, which is the principal question.
In the absence of a special contract, the usual test of one's being a partner is his participation in the profits of the business as such, involving a common liability for losses. Mauney v. Coit, 86 N.C. 463. A perusal of the whole evidence fails to disclose any of the usual tests of partnership, there being no such special agreement, and does not support the plaintiff's contention, to be inferred from the acts of the defendant, who never held himself out as a partner of Smith, but expressly denies such relationship. The evidence shows that Smith was engaged in the business of buying timber trees from divers persons, and working out crossties and selling the same to the defendant, as he had done to Cooper and other persons, and marking the crossties accordingly, when delivered to the railroad companies. The defendant agreed to pay and did pay the vendors of the trees, instead of paying directly *Page 117 to Smith, by accepting Smith's drafts on him in favor of the bank and others. The sellers protected themselves by retaining title until the crossties were paid for, or until they received satisfactory drafts or promises for the same.
Whilst there are some items of the evidence that would not be inconsistent with a partnership relation, yet they are too slight to be sent to the jury on the main question, as pointed out in Young v. R. R.,116 N.C. 932.
AFFIRMED.
(195)