Decided 4 March, 1901.
On Motion for Rehearing.
Mr. Justice Mooredelivered the opinion.
3. In the petition for a rehearing of this cause it is contended by plaintiff’s counsel that this court placed too- much reliance upon the defendant’s testimony, and hence erred in reversing the decree of the court' below and dismissing the suit. It is proper to say that having concluded that the relation of partners did not exist between the parties, and that the plaintiff had an adequate remedy at law, to avoid any prejudice that might result in an action in that forum from a comment upon the testimony, a review of that given by either party was studiously avoided, except where it was uncontradicted, or where that given by one party was tacitly admitted by the other. The averment in the answer that the plaintiff had a full, complete, speedy, and adequate remedy at law for the redress of his alleged wrongs was treated *532in the nature of a demurrer to the evidence, in view of which plaintiff’s testimony only was considered; and deeming it, for the purpose insisted upon, to be true, we concluded that it was insufficient in iaw to prove the existence of a special partnership. Nash, being the party in interest, was obligated to pay the costs and expenses incurred in the suits and actions .in which the plaintiff and the defendant were retained, and hence the business in which they were engaged was not in any sense a venture. They were- not expected to participate in any gains or to share any losses, but to divide the fees which were earned by them as compensation for the performance of their professional duties. The lower court, in decreeing the existence of a partnership, probably relied upon the rule promulgated by Mr. Lindley in his work on partnership (volume I [2 Am. ed.], p. *118), and felt constrained to follow the seeming approval thereof in Bloomfield v. Buchanan, 13 Or. 108 (8 Pac. 912), but we think that the principle there announced is not conclusive in a suit between parties, 'one of whom insists that they were not partners. As between them, no partnership could exist with-not an intention to enter into that relation; and the plaintiff, does not even testify that such was their purpose, but seeks to establish a partnership by the proof of independent facts from which the principal fact is inferable. This would allow a party upon whom the duty of proving the existence of an intention to enter into a partnership’ devolved to prove the rights of a stranger who’ had relied upon their conduct in entering into a contract with one of them as evidence of that relation. The plaintiff knew whether it was their intention to form a partnership, and, if such an intention existed, it was his duty so’ to- testify; and, having failed in this respect, we are compelled to overrule the petition.
Rehearing Denied.