DISSENTING OPINION OP
GALBRAITH, J.I do not agree with the conclusion nor the reasons given by the court in the above opinion. If the issue was one of fact and the testimony irreconcilable, as is stated, it seems that the finding and conclusion of the Circuit Judge wbn heard the witnesses testify and observed their conduct while so doing is not given the weight and consideration to which it is entitled. I believe that the trial judge was right when he found for the defendant ánd dismissed the bill on the ground that the evidence was about equally balanced and that the plaintiff had not sustained the burden of proof imposed on him by law.
No attempt was made to' impeach any of the witnesses-and no *510reason appears in the record for giving special credence to one-over the other.
It seems to me that there was an issue of law as well as of fact presented to the court. (1) An issue of fact to ascertain what: was the agreement or contract between the parties; (2) an issue of law whether such agreement or contract constituted a partnership.
The purpose of the alleged partnership was to solicit and write-life insurance. It is claimed that the relation was formed in September, 1898, and was terminated on December 19th following, but that during a part of this period, i. e. when the defendant was absent from Honolulu, the partnership was in a state of suspended animation and that on defendant’s return’ this nameless partnership again bloomed into life.
It appears from the record that no books of account were kept in behalf of this alleged partnership, that it had no name, that it had no office or place of abode; that it had no assets, not even a chair or a writing pad, and that it had no capital except that carried under the hat of the respective individuals alleged to be members thereof.
A partnership is a distinct entity from the individuals who. compose it. If these parties were partners it was because they made themselves such by agreement. Whether they were or not is largely a matter of intention. An agreement to share the profits and losses does not absolutely constitute a partnership, as a conclusion of law. If other circumstances show that no partnership was intended they will control. Bates on Partn.,. Sec. 29.
One fact in the case is clearly established, i. e. that practically all of the alleged partnership business was done in the-name of the defendant, applications were signed by him, notes-for premiums were taken in his name and he was the agent known to the company issuing the policies.
I submit that the evidence shows that the defendant acted' towards the plaintiff and the business as any business man would do who sustained the relation to him that the defendant, insists-*511he did, i. e. that the plaintiff was his agent to solicit insurance and he compensated him for his services by paying him 50% of the commissions received on all policies secured by him.
“There is a partnership/’ says the Supreme Court of Connecticut, “between two_or more persons whenever such relation exists between them that each is as to all the others, in respect to some business, both principal and agent. If such relation exists they were partners; otherwise not.” Morgan v. Farrel, 58 Conn. 422.
The record fails to show that the plaintiff was principal in any of the transactions of the alleged partnership with possibly one exception. In all of the other transactions he appears as agent but not as principal.
It seems to me that'the relation between these parties was too uncertain and unsubstantial for the court to dignify it by the name of partnership. The plaintiff’s appeal ought to be dismissed and the decree of the trial judge .affirmed.