delivered the opinion of the court.
In this case the plaintiffs claim the reimbursement of money, which is alleged to have been paid by them for and on account of the defendant. Judgment was rendered for the latter in the court below, from which the former appealed.
The facts of the case show that the plaintiffs and defendant had a common interest in one hundred and seventy-five bales of cotton, the latter being interested to the amount of one-third, that this cotton was shipped from New-Orleans to New-York, in the summer of 1825, to be disposed of on joint account; that the consignee and factor of the parties, Flack, who it seems took an interest of one-third in the adventure, by consent of the plaintiffs who were interested to the amount of two-thirds, did not sell or otherways dispose of the cotton immediately on its arrival in New-York, but waited the coming of John Hagan to that city. On his arrival the market for this article was bad, and great want of confidence prevailed in regard to the solvency of persons who were disposed to purchase; the customary credit in sales of cotton was ninety days. Under these circumstances Hagan and Flacky who had become interested, as above stated, determined to reship the cotton and send it to Liverpool, where it was sold at a considerable loss on the original cost in New-Orleans. One third of this loss, which has been paid by the plaintiffs *314for the defendant, they claim from him in the present action.
A common interest in personal property, to be sold on joint account, constitutes a commercial partnership for the particular adventure $ and any act fairly and honestly done by one member of such partnership, isjbinding- on theThe first, and perhaps the only question of law arising out of these facts is, whether the plaintiffs and defendant may properly he considered as commercial partners, in relation to this adventure? This question was decided by the court below in the negative, and consequently judgment rendered in favor of the defendant.
If the doctrine assumed by the Supreme Court, in the case of Purdy et al. vs. Hood et al. 5 N. S. 626, and that of Gougot vs. Roduquez, 1 La. Rep. 508, be legally sound and orthodox,(which we believe to be true,) then we are constrained to say, that the District Court erred in its solution of the question as propounded, and consequently erred in its final conclusion and judgment on the whole cause. We hold that the parties to the present action were commercial partners quo ad the adventure in cotton, as stated in the petition, and that as such, any acts done by one of them, fairly and honestly; are binding on the others. It is not pretended that any thing fraudulent occurred in the present instance, nor does the testimony on record show any gross negligence in the conduct of the acting parties, such as might possibly in equity, and according to fair dealing, throw the whole loss .on them. The authority cited on the part of the defendant, from Kent’s Com., we consider as inapplicable to the present case. The author states distinctions in relation to-the powers and disabilities of simple part owners of property, and partners in a commercial transaction, and the different rights arising out of those distinctions. But as has been already stated, we are of opinion that the evidence in . the case, now under consideration, fully establishes the parties to-be partners, and subjects them to the government of rules relating to partnership in trade.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled, and it is further ordered, adjudged and decreed, that the plaintiffs and appellants do recover from the defen-, daiit and appellee, the sum of two thousand four hundred and sixty-four dollars; with costs in both courts.