I cannot concur with my brethren in affirming the judgment in this case, and feeling the *Page 45 importance of the decision and question involved fully justifying my non-concurrence I respectfully dissent. As I understand the decisions of the Supreme Court as well as of this court, the decision in this case is a practical overturning of the well settled law. Buzard v. Bank of Greenville, 67 Tex. 83, is cited and relied on to sustain this affirmance. I do not believe it is in point especially as distinguished by the Supreme Court in Kelley Island Line Transport Co. v. Masterson, 93 S.W. Rep., 427, and by this court in the McCrary cases, 51 Tex. Crim. 496 and 502; 103 S.W. Rep., 924 and 926. The Buzard case, supra, is not in point and the other cases are. Under the law as settled law in this State this cause should have been remanded for another trial. Mr. James H. Hart, counsel for appellant has filed an able and well considered brief in the case which forcefully reviews the cases and clearly presents the issue involved. I shall content myself with adopting his brief as grounds for my nonconcurrence, which is as follows:
"This case is distinguishable from the principles involved and enunciated in the Buzard case, just as the facts of the case of Kelley Island Line Transport Company v. Masterson (93 S.W. Rep., 427) is distinguishable from, and as Justice Brown did distinguish between it and the Buzard case.
"In the Buzard case, Pennington was held to be the agent of Buzard. Buzard had employed Pennington and furnished him with money with which to buy cattle, and for his services, Pennington was to receive a part of the profits of the business.
"In the Masterson case (93 S.W. Rep., 430) Masterson put his money in a certain contract for paving, against the skill and services of Downey and Kelley, original contractors, who had contracted with the City of Beaumont to perform certain paving work. Downey and Kelley were under no obligation to repay Masterson the money advanced by him. Masterson took the chances of success for the return of the money and interest. Downey and Kelley were to receive each $100 per month as advances to be deducted from their share of the profits. Masterson was not to receive his share of the profits as compensation for the use of his money, nor were Downey and Kelley to receive their share as payment for services; but each received the profits as fruits of the joint enterprise — and this state of facts was held by the Supreme Court to constitute Masterson a partner with the others; and this, although Masterson did not so regard himself.
"Casting aside the loose expression of an ignorant negro subjected to a rigid cross-examination presenting leading questions, that he `guessed' he was not a partner of Dillingham's, and that he `guessed' the money he received from the contract entered into between himself and Dillingham was wages, there is nothing in this case to distinguish it from the Masterson case. Of course, the negro did not know what a partnership was, and had he known it, he would have been loath in a court of justice to claim partnership with a white man; nor did it occur to Dillingham that his contract with the negro constituted them partners. *Page 46 Dillingham would doubtless have scorned such a relationship. But their expressions as adduced on the trial, are of little, if any, value in deciding this question. What they did agree to and what they subsequently did, while the contract was being carried out, are the only matters of any real value in determining the relationship created.
"Compare the two cases. Masterson put up his capital. So did Dillingham. Kelley contributed his services. So did Butler. Kelley did not obligate himself to repay Masterson the money Masterson put in the enterprise. Neither was their express or implied obligation on the part of Butler to indemnify Dillingham in case of injury to the wagon and mules. Masterson took the chances of success of the enterprise to recover his investment. Dillingham took the same chances to make money out of his capital — his wagon and mules. Butler took the same chances to receive money for his labor. Masterson was not to receive his share of the profits as compensation for the use of his money. Nor, under their agreement, was Dillingham to receive one-half of what Butler made with the team as compensation for the use of the team, but Dillingham and Butler were to divide the fruits of their enterprise. If Butler made no money with the team, Dillingham lost the use of the team, and Butler lost his time.
"Masterson did not think that he was making the laborers, Downey and Kelley, his partners. He did not intend to so do. Yet the Supreme Court says that he did create that relationship. Butler and Dillingham did not think that they were creating a partnership, but their thoughts and their intentions have no real weight, in the face of the real undisputed agreement, and their acts in consummating that agreement.
"Or take the case of Dancy, 41 Tex.Crim. Rep.; 53 S.W. Rep., 886. The record in that case discloses that the prosecuting witness furnished Dancy with $300 with which to buy cattle; and the two were to divide the profits arising from the investment. This was all the evidence on the subject — that they were to divide the profits. There was no testimony that they regarded themselves as, or called themselves partners, yet this court says they were partners, under the facts above recited, and that Dancy could not be guilty of embezzlement of this money.
"Or take the Manuel case, 44 Tex.Crim. Rep.; 71 S.W. Rep., 973. There, the prosecuting witness, Roach, gave the defendant, Manuel, $600 with which to buy a saloon, the arrangement between the two being that after the $600 was repaidRoach, he and Manuel were thenceforth to divide the profitscoming from the business. This was held to have created the partnership relation.
"And the same applies to the Ray case, 48 Tex. Crim. 122; 86 S.W. Rep., 761.
"Out-of-State cases involving closely similar states of fact might be cited in great number, but when the cases of our own State involving the same question, and based on states of fact so nearly identical are at *Page 47 hand, and the decisions are so homogeneous on the question involved it would seem futile to burden the court further. No two states of fact involving different transactions could be more nearly identical than the facts of this and the McCrary case. Without dissenting opinion, and in an opinion more exhaustive than usual, this court held the facts of the McCrary case to constitute the parties partners. There was no testimony in that case that the parties did or did not regard themselves as partners. Their intention except as stated in their contract, is not made known. Had there been any such testimony, however, in the light of the opinions of the courts in the other cases above cited, it would have had no weight in determining the relation."