The opinion of the Court was afterwards drawn up by
Wilde J.The question submitted is whether the defendants are liable in this suit as partners. It is admitted that they were not partners inter se, for by the terms of their agreement they had not a mutual interest in the profits and loss of the business to which it related, which is essential to render a partnership complete. But the plaintiff’s counsel contend that both of the defendants participated in the profits of the business, and were thereby chargeable with respect to third persons. And it is certainly a well established principle, that whoever participates in the profits of a trade, or has a specific interest in the profits themselves, as profits, is chargeable as a partner 'with respect to third persons. Gow, 14. But it is equally well established, that where a party is entitled to or re*195ceives a given sum of money, in proportion to a given quantum of the profits, as a compensation for his labor and services, he is not thereby liable to be charged as a partner. Gow, 19. Thus in Dry v. Boswell, 1 Campb. 329, the proprietor of a lighter agreed with a person to work his lighter, and to allow him therefor one half of the gross earnings as a compensation for his labor ; and it was ruled by Lord Ellenborough, that such an agreement did not constitute a partnership. The cases of the seamen employed in the' whale fisheries, and of shipments to India on half profits, come within the same distinction.. So factors and other agents who receive commissions in proportion to the amount of sales, are interested in the profits, but as they have no interest in them, excepting so far as they may determine the amount of compensation for their services, they do not thereby become partners.
And we are of opinion that the present case falls within this distinction. The object of Bissell was to have his wool worked into cloth, and he agreed to allow Root, as compensation for manufacturing, an amount of money to be regulated by the amount of sales ; and in no other manner was Root interested in the profits. The circumstance that Root was to find warps, does not affect the principle upon which the distinction as to compensation is founded. If Bissell had agreed with Root to pay him a certain sum for his services, and for supplying the warps, there could be no pretence for holding them as partners ; and we can perceive no difference in principle, arising from the circumstance that the compensation was to be determined according to the amount of sales.
Motion to set aside the nonsuit overruled.
After this case had been reserved as before mentioned, the St. 1834, c. 189, was passed, providing “ that if in any action founded on debt or contract now pending, &c., against two or more defendants, it shall appear at any time before final judgment therein, that any of the defendants was not a party to such contract, he shall be discharged therefrom, &c., and the plaintiff shall thereupon be entitled to recover against any other defendant or defendants in such action, in the same manner as if such action had originally been brought against *196such other defendant or defendants only.” And the plaintiff moved to discontinue against Root and proceed against Bis-sell, inasmuch as the declaration set forth some demands for which, if the defendants were not partners, Bissell alone was liable, and property of Bissell had been attached on the writ. This motion was opposed, because Root, having been defaulted, had thereby confessed that he was a party to the contracts declared on and the statute was intended tp authorize the plaintiff to discontinue against one of two defendants who had made a successful defence, as Bissell had done in the present case, and to take judgment against the other; and further, because it had been agreed that the plaintiff should become nonsuit, if the contract between Bissell and Root did not constitute a partnership. But the Court were of opinion, that under the statute a plaintiff might discontinue against a defendant who had been defaulted, and they said that if the statute had been in existence at the time when the case was reserved, the reservation would have been in accordance with it; they therefore granted the plaintiff’s motion, thereby securing to him the benefit of his attachment, but under the circumstances they said he ought to be placed in no better situation as to costs, than if he were required to bring a new action. See Revised Stat. c. 100, § 6, 7.