The tenth instruction, and the last in the series given for the plaintiff below, directed the jury that, if they believed from the evidence that Hoops was authorized by the defendant, Morris, to execute the contract of February 9, 1880, and that he did execute it, and if they should further believe from the evidence that the materials sued for were furnished for the purpose of fitting up steamships under the said contract, then they were instructed that the defendant was liable in this action for the fair value thereof, if such value had been shown by the evidence. It will be perceived that this instruction contains no hypothesis that the materials sued for were furnished at the request, or by the direction of any one; but only that they were furnished for the purpose of fitting up steamships under the said contract. The plaintiffs were in no respect parties to that contract. The contract referred to purports to be and is between certain steamship companies as parties of the one part, and defendant as party of the other part. The plaintiffs were not included; they were strangers to it. Besides, the defendant undertook therein to pay for only one half of the cost of the fittings. To whom should it be understood that he promised to make that payment? To the parties from whom the consideration for.the promise moved. The rule is, that “if a party to a contract promised payment without saying to whom, it shall be understood that he promised payment to him from whom the consideration moved.” Chit, on Cont., 6th Eng. (10th Am.) ed., 79.
It can not admit of doubt, that the consideration for defendants’ promise of payment moved from the steamship companies, with whom plaintiffs were in no wise connected.
The contract did not create a partnership between the parties to it. The essential test of a copartnership — a sharing in profit and loss — is wanting. It is not pretended that the defendant had any interest in the steamships as co-owner or otherwise. By the contract, even the fittings, one half of the costs of which he promised to pay to.the companies, were to belong to such companies. It is too plain to justify any argument that the contract in question was one between carriers by water and a proposed shipper of particular kinds of goods, to ship which safely, required some new appliances and fittings in the vessels. These, it is clear, were to be provided by the carriers, to whom they were to belong; and on account of them and certain terms stipulated as to the carriage of the goods, the shipper promised to pay such carriers one half the cost of such fittings.
To say that this constituted the steamship companies and the defendant copartners, so that such companies were the agents of defendant and could hind him to any person whom they might employ to furnish such fittings, is a sheer perversion of the intent and meaning of that contract. As was well said by Lord Mansfield in Hoare v. Dawes, 1 Doug. 371: “ It would be most dangerous if the credit of a person who engages for a fortieth part, for instance, should be considered as bound for all the thirty-nine parts.”
Heither would the defendant be regarded as a joint contractor with the steamship companies, if they or either of the latter had ordered the material in question to be furni shed. The principles recognized in Coope v. Eyre, 1 H. Bl. 37, are directly applicable to the above proposition.
The instruction was 'erroneous and for the giving of it the judgment for plaintiffs must be reversed and the cause remanded.
Judgment reversed.