By the Court,
Marcy, J.I am strongly inclined to think that the several persons concerned in this adventure, as respects each other at least, may be regarded as tenants in common, and the objection to sustaining the action arising from a supposed partnership is not well founded; but the first objection appears to me insurmountable. The agreement was special. The defendant was to furnish the cotton, and to be interested to the amount of one half, on condition that the pla:ntiff would advance the price for the whole, and when the returns of sales should be received from France, the defendant was to pay his share of the loss, in case there was a loss. The clear intent of the parties was, that the plaintiff was to receive for his advance on the cotton the avails of it in France, and the defendant was to be called upon to pay only in the event of a loss. This is evident from the fact that the consignees where the brothers and correspondents of the plaintiff, and the invoice stated the shipment to be made by the plaintiff on account and at the risk of the parties concerned in the adventure, and that he did actually receive the avails.
It will scarcely be pretended that the defendant could have been required, immediately after the advance was made, to pay the price of one half of the cotton; and if not then, when was he liable to pay 1 never in my judgment for the whole amount unless there had been a total loss of the property adventured. His contract was to pay only for the loss, and not for the total amount of the advance on his account. If there was a loss, the plaintiff should have declared for such loss, and to the extent of it he might have recovered.
New trial granted.