It is conceded that the plaintiff is entitled to recover against both defendants if they were partners as to third persons, and not otherwise. The general principles that govern the case were recently stated in the case of Fitch v. Harrington, 13 Gray, 468. If both were to participate in the profits of the business as profits, both are liable ; but if Langdon was to receive half the profits as a compensation for what he did for Wilson, without having any specific lien on the profits, he is not liable. Receiving one half of the profits, or one half of the net profits, unless it was to be received as profits, would not make him a partner. Holmes v. Old Colony Railroad, 5 Gray, 58.
As both parties admit the testimony of Langdon to be correct, nothing remained at the trial but to decide upon the legal effect of the contract as he stated it. This is the duty of the court, and not of the jury. When there is merely evidence tending to prove the terms of an oral contract, the jury should find what the terms were, under instructions. But here there was no dispute as to the terms, and there was no question of fact to be settled.
According to the statement of Langdon, he retained an interest in the stock in trade, so that, when he should choose to *547terminate the business, he had a right to take as his own a sufficient amount to make good the stock which was supplied by him ; and this right applied as well to the goods which Wilson might purchase in his own name, as to those which were supplied byLangdon. Out of this stock he had also a right to retain his share of the profits. The fact that Wilson was to carry on the business and make the purchases in his own name does not affect the question of the real interests and rights of the parties. The business of a partnership is often managed in the name of one of the partners. Wilson had also an 'interest in the stock, and was entitled to his share of the net profits out of it. The decisive fact is, that each had a lien on the stock for his share of the profits. The jury should have been instructed that Langdon was liable to third persons as a partner upon his own statement. Exceptions sustained.