delivered the opinion of the court:
Among the numerous errors assigned, appellants challenge the correctness of this judgment upon the ground that it is not in accordance with the allegations of the complaint, or justified by the evidence introduced. By the express terms of the contract alleged, and as testified by Mr. Gause, L. Baldwin & Co. No. 1 was to receive, pay for, handle, care for and sell, the cattle, and, after deducting from the amount realized from their sale the purchase price and the amount expended for their care and management, pay to Gause one-half of the remaining net proceeds. There is no averment of wrongful conduct or willful neglect on the part of the defendant in selling or failing to sell the cattle received under the contracts. The allegations of the complaint are, in substance: That a large per cent, of the cattle *351and calves delivered under the contracts had been sold at a large profit, and that all of them could have been sold at and proximate to the time of said delivery for prices that would have netted large and substantial profit; that L. Baldwin & Co. No. 1 failed and neglected and refused to dispose of all -of said cattle, but took possession of a large remnant of cattle and turned the same out upon the ranges, and althoug’h for a long time subsequent to the delivery of such remnant the- prices were such that all of said cattle and offspring therefrom could have been disposed of at a fair and reasonable net profit, L. Baldwin & Co. No. 1, though importuned to do so, refused and neglected to dispose of the same, and such said remnant remained in the possession of that company, or its successor, L. Baldwin & Co. No. 2.
These averments were put in issue by the answer, and we find no evidence as to whether these cattle were marketable, or could have been sold at a profit, or any evidence tending to show any bad faith or willful misconduct on the part of the defendants in failing to dispose of the cattle remaining on hand at the time of the commencement of this suit. In these circumstances, we do not think the defendants are chargeable with the cattle unsold, or liable to plaintiff for one-half of their value, even if such value was ascertained upon competent testimony; and they certainly cannot be held for an amount estimated by the. referee without any evidence upon which to base such estimate.
Notwithstanding the judgment must be reversed, and the cause remanded for the reasons above given, we feel it incumbent upon us, in view of another trial, to determine the further question as to the relationship of the parties under the agreement set forth in the complaint and relied on by plaintiff. Counsel for appellee contend, and the court below found, that *352a partnership existed between Canse and L. Baldwin & Co. No. 1 in relation to the transaction under consideration; while counsel for appellants insist that the terms of that agreement do not create that relationship between the parties, but lacks many of the essential elements of a partnership, viz.: ‘ ‘ Community of loss, community of title, community of expenses, and common right to dispose of the property for purposes of a partnership.”—Beckwith v. Talbot, 2 Colo. 639.
In Lee v. Cravens, 9 Colo. App. 272, 288, it is said:
■ “Another incident of a partnership is the sharing of losses by the partners. The partnership contract may say nothing about losses, but the right to participate in profits implies a corresponding liability for losses; and it has accordingly been held that an agreement for the division of profits is admissible in evidence as tending to show a partnership. Where, however, an agreement between two or more persons, in relation to the prosecution of an enterprise, provides that one of their number shall incur no risk, and be chargeable with no loss, the agreement is not one of partnership.”
Under the contract with the Western Union C. L. & I. Co. and the contract with Simpson & Bourbonia, the title to the cattle purchased and their .increase vested in L. Baldwin & Co. No. 1. They had the eare, management, and the sole power to dispose of them. There was no community of loss between Cause and the company. If the cattle had died after the purchase by the company, or the venture had proven a failure for any other reason, the whole loss would have fallen upon the company, and Cause would not have been answerable to the company for any part of the loss it may have suffered thereby.
As we construe the agreement between Cause *353and L. Baldwin & Co. No. 1, it did not constitute a partnership between them, but is evidence of the ■ fact that Gause turned over to L. Baldwin & Go. his agreement with Wright for the purchase of the Anchor X cattle and all his rights thereunder, in consideration that the company should assume all responsibility of the purchase, care and disposition of the cattle, and account for, and pay to him, one-half of whatever net profit should be realized from the transaction when consummated.
Under this contract, a right of action would exist when all the cattle purchased by L. Baldwin & Co. No. 1 in pursuance of it had b'een, or by the exercise of reasonable diligence might have been, sold, or when it is shown that, by reason of the fraud or willful misconduct on the part of the defendant companies, any of them remain unsold.
The judgment is reversed. and the cause remanded. Reversed.
Chiee Justice Steele and Mr. Justice Bailey concur.