By the Court.
Daly, F. J.There was nothing in the agreement between the parties to this suit creating a • co-partnership. To constitute a partnership inter se, there must be an agreement to share in the losses as well as in the profits, and there is nothing upon the face of this agreement from which it can be implied that the defendants were to bear any losses, The plaintiff was to pay for the building of the machine, for which he was to be repaid from the receipts derived ■ by the working or sale of it. If nothing were derived, he had to bear the loss incurred by this outlay, for there is nothing in the agreement showing that the defendants were to share the loss with him, or hear any part of it. It was an agreement by which he undertook to pay all the expenses of building a machine, the earnings of which v.wre to be proportionably divided between the three, after he was repaid the amount he had advanced : and this will not constitute a partnership (Puttison v. *522Blanchard, 1 Seld., 190; Rice v. Austin, 17 Mass. R., 206; Champion v. Bostwick, 18 Wend., 183, 184; Green v. Beesley, 2 Bing. N. C., 108 ; 3d Kent’s Com., 24 ; Collyer on Part., 9).
That no partnership was created is conclusively shown by1 what was done under the agreement. The machine was built at the expense of four hundred and eight dollars and twenty-six cents. The defendants worked upon it, and the plaintiff paid each of them for their labor. He paid three hundred and fifty-eight dollars and twenty-six cents, being the entire cost of the labor and materials ; to which were added fifty dollars for the use of his horses and wagons, and his own services, making altogether the above sum of four hundred and eighty-six dollars and twenty-six cents. The machine was then placed upon exhibition in a room on Broadway, the rent of which, forty-five dollars, the plaintiff also paid, and whilst there- it was removed by the defendants, who sold it for four hundred and fifty dollars, with the understanding that that amount was to be equally divided between the two; but Samuel Mills, by whom it was sold, paid his brother George hut one hundred dollars of the amount and kept the residue. George Mills, it would seem, sued his brother for his part of the machine, and then went to the plaintiff, and asked him to sue Samuel for using the patent. The plaintiff asked him “ what machine he was talking about?” he answered, “ that machine of mine upon which the plaintiff said: “ How came yon to have anything to do with it. I paid every cent, I paid your last money, and you said I owned everything there was about itto which the other replied: “ They all went in to rob you, and I thought I should do so too.”
The plaintiff brought this action to recover damages for the breach of the agreement. A motion was made to dismiss the complaint upon the ground that the plaintiff and defendants were co-partners, and the plaintiff’s only remedy washy a suit in equity, which motion was granted.
If the agreement had been that the defendants were to he paid for their labor in building the machine, out of the proceeds derived from the sale or the working of it, then there would have been a communion of las ■ as well as of profit; as in the event, of the failure of the adventure, they would hive had nothing fur their labor. Bui, on the contrary, the plaintiff, in *523accordance with the terms of the agreement, paid each of them for their labor the same as if they were strangers; so that in no event could there be any risk of loss on their part. FT or could any liability arise by which any one would he subject to loss by the act of the others, as, by the terms of the agreement, no one could contract any debt by which the other could "be bound, except with the personal assent of the party to he bound. It was, therefore, simply an agreement for a division of profits in the event of success, and that would not make them partners inter se. ' The action was properly brought to recover damages for the breach of the agreement, and the plaintiff is entitled to a new trial.