The Opinion of the Court was delivered by
Treat, C. J.*One branch of this case — that relating to ' the canal contract — is easily decided. The bill states that Campbell & McFarrin' purchased the share of Wilson in this contract, but alleges a secret arrangement between Campbell and Wilson, by which the latter still retained an interest in the contract. The answer admits the sale, but denies the private agreement charged in the bill. There is no proof that any such agreement was made; on the contrary, it clearly appears that the sale was bona fide, and absolute in its terms. There was then no partnership between the parties in this contract to be adjusted by a Court of Equity.
The other branch of the case relates to the rail road contract. The bill does not seek the specific performance of an agreement for a partnership, but it proceeds on theground that there has been a subsisting partnership, in the settlement of which the aid of a Court of Equity is necessary. A mere agreement to form a partnership does not of itself create a partnership. The parties must enter on the execution of the agreement before the relation of partners exists between them. While the agreement remains executory, if one of them refuses to carry it into effect, the only remedy of the other is by an action at Law for the violation of the agreement, or by a bill in Equity to enforce specifically its performance.
It was probably the understanding of these parties, that each should, under certain circumstances, become equally interested in whatever contract either might obtain on the rail road. The question is, was this understanding so carried into effect as to constitute them partners in the contract procured by Wilson. We are clearly satisfied that no partnership in fact existed between them in the execution of this contract. The acts of the parties afford the strongest evidence that they did not regard themselves as jointly interested. In the prosecution of the work under the contract, Wilson performed all the services, made all the advancements, and incurred all the responsibilities. Campbell claimed no control over the contract, nor in any manner concerned himself about its performance. Wilson did not recognize him as a partner, but on all occasions denied that he was such. The offer of Wilson to give Campbell one hundred dollars for his interest in the contract — proved by the witness, Owens — was made before the work commenced ; and his subsequent statement to McFarrinno doubt referred to the same proposition. After Campbell sold out his interest in the canal contract, he took a sub-contract from Wilson and his associates for work on this very rail road contract. If a partner of Wilson, why did he not join him in prosecuting the contract to completion instead of becoming a sub-contractor under him.
The statements of the bill respecting the objects of the partnership, and the mode of conducting it deserve consideration. These statements are, that the sale of Wilson’s share in the canal contract was not real, but, as between Campbell and Wilson, an expedient only to enable them to procure means and credit at the store of Campbell & Mc-Farrin to prosecute the rail road contract, and that Wilson should superintend the work on this contract and Campbell that on the canal; in other words, they were partners in both contracts, and the services of one were to be an equivalent for those of the other, while the means for carrying on both contracts were to be obtained from the firm of Campbell & McFarrin. The proof shows conclusively that these allegations are untrue. The sale was absolute, and Wilson from that time ceased to be interested in the canal contract. The sale was made about the time the work on the rail road was commenced, and Campbell could not therefore perform any services on the eanal that would enure to the benefit of Wilson. By the terms of the sale, Campbell & McFarrin became largely indebted to Wilson, and the moneys and goods received by him were in liquidation of this indebtedness.
The evidence fails wholly to make out a case of partnership, and if Campbell has a cause of action against Wilson, it is for a violation of the agreement to form a partnership, to be enforced by "a suit at Law.
The Circuit Court erred in decreeing that a partnership existed, and consequently all of the subsequent proceedings in the case were erroneous.
The decree of the Circuit Court is reversed with costs, and the bill dismissed.
Bill dismissed.
Caton, J. took no part in the decision of this cause, it having been removed by change of venue from the Circuit where he was formerly the presiding Justice.