The contract set forth in the first count of the declaration, creates a partnership between the respective parties, with respect to the fare received by either of them for passengers and their baggage, on the route from Sara-toga Springs, by the way of Griswold’s, to Glen’s Falls, Sandy Hill, Whitehall, and the intermediate places. The rule of apportionment agreed upon by the parties, was according to the distance which the several passengers should be carried by the respective parties. This mode of dividing the profits constitutes that community of interest, which characterizes a partnership between individuals, and entitles either of them to an account. This case is in principle exactly like Fromont v. Coupland, (2 Bing. 170.) There, the plaintiff and defendant had been engaged in running a coach from Bath to London. The plaintiff found the horses for one part of the road, and the defendant for another; and the profits of each party were calculated according to the number of miles covered by his own horses: the plaintiff received the fares and rendered an account thereof to the defendant every week. It was held that the plaintiff and defendant were partners in the concern, and that in an action by the plaintiff against the defendant upon a separate transaction, the defendant could not set off a balance which had been declared in his favor upon these weekly accounts. It did not appear that any final account had been stated, or that the plaintiff had made any promise to pay the balance in question. The case of Fromont v. Coupland is in some respects different from this. The question in that case arose upon the trial, and upon a set-off, and this upon a demurrer. But the defendant would have been entitled to set off the balance, if he could have main-* tamed an action at law for it. In that case too, the weekly balances had been rendered by the plaintiff to the defendant, In this case no balances were ever struck, either of the monthly accounts which were to be rendered, or of the final account. In *541that case, although the account had been rendered from week to week, yet as no final balance was struck, it was observed by Park, J. that “it is a final balance alone that can be allowed as a' set-off, and that only when there has been a promise to pay it.” The case of Foster v. Allanson, (2 D. & E. 479,) and Moravia v. Levy, (Id. 283, n.) are in point to show that one partner can not maintain assumpsit against his copartner, unless upon a balance struck and a promise to pay; both of which cases are recognized as sound law in Fromont v. Coupland, (supra;) Casey v. Brush, (2 N. Y. Term Rep. 293;) and Nivern v. Spickerman, (12 John. 401, 402, n.) And the doctrine itself is repeated in Halsted, v. Schmelzel, (17 John. 80,) and Murray v. Bogert, 14 Id. 318.)
To what extent the parties were partners, as to the public, the present action does not lead us to inquire. Those who wish to see how far this contract rendered the parties jointly liable to third persons for injuries done by their servants or by either of the partners, will find the subject fully discussed and correctly adjudged in the well considered case of Champion v. Bostwick, (11 Wend. 571;) and S. C. in error, (18 Id. 175.) It is not pretended that the partnership between the parties was general. Indeed, with respect to most of their transactions, such as purchasing horses, carriages, employing drivers, and defraying the expenses of their respective teams, and the like, they incur no joint liability, and each is answerable only for his own acts. But as regards the public, for an injury occasioned by the acts or omissions of either of the parties, or their servants, it is well settled that they are partners. And with respect to the division of the passage money, they are clearly partners as among themselves.
There is no averment that any balance was ever struck between the parties, or that the defendant, since the partnership, promised to pay any balance. Even in Wetmore v. Baker, (9 John. 307,) there was a balance struck by the mutual agreement of the parties. And in that case the court held that the law implied a promise to pay, and allowed the plaintiff to recover in an action of assumpsit. The language of the court in *542this case is not warranted either by prior or subsequent adjudications. (See 2 N. Y. T. R. 293 ; 12 John. 401, 2; 14 Id. 318; 17 Id. 80.) The case itself, however, seems to have been correctly decided, because it in truth appears that one of each of the partners forming the stage copartnership was present at the time the balance was struck, and one of the defendants remarked that “ he expected to have to pay it.” Here was abundant evidence for the jury to find an express promise to pay, and therefore the court need not have rested it upon the ground on which it seems to have been placed. Chancellor Walworth, in adverting to it, in Champion v. Bostwick, (18 Wend. 182, 183,) while he approves of the decision, places the liability of the defendants upon the ground that one of the partners in, each of the firms forming the stage copartnership was present when the account was stated, and agreed to it.
We think the defendant is entitled to judgment on the demurrer, with leave for the plaintiffs to amend on payment of costs.
Judgment for the defendant.