Dissenting Opinion.
Egan, J.No field of inquiry in the law has been more vexed, and in none have the decisions of courts generally been more irreconcilable than as to what constitutes partnership and when responsibility as partners is incurred. The present case, and the array of learning and authority on both sides afford an apt illustration of this fact. It is both wise and well to borrow light from the enlightened and progressive jurisprudence of other States and countries when our own law. is silent, -or the jurisprudence of our own State either unformed or uncertain. We are, however, not at liberty to do so where neither is the case if such reference should lead to conclusions antagonistic to the doctrines settled by our own law and announced by our own courts. Unlike Great Britain especially, we have a codal definition both of partnership in general and of commercial partnership in particular. The former is a contract between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill, or industry furnished in determined proportions by the' parties. O. O. 2801. The latter ,is formed, first, for the purchase of any personal property, and the sale thereof, either in the same state or changed by manufacture; second, for buying or selling any personal property whatever, as factors or brokers; third, for carrying personal property for hire in ships and other vessels. O. O. 2825. When the conditions exist which are embraced within any of these definitions, partnership results from the very terms of the law, though nothing further be said, and no matter whether the parties so understood or intended or not. A sale is none the less a sale where all the elements necessary to constitute it exist whatever the parties may call it; and so it has often been decided. The same is true of partnership of whatever class. We are told, however, that in the present case, although the several parties agreed together in advance for the purchase and sale of personal property, sugar and molasses, and although they agreed for the mutual participation in the profits in determined proportions, that it is not a partnership, but a commercial adventure or joint *644account, like the Association en Participation of France. In other words, that although all the conditions of a commercial partnership under our law exist, it is not a partnership because some of the parties or all, if you will, did not at the time intend to so constitute it, although nothing was said about their intention at the time beyond that to enter upon the common venture for the common profit. That the parties anticipating profits agreed and are entitled to share in them but not in the losses or liabilities incurred in carrying out the venture. It so happens, however, that we are not left at sea and need not go abroad to ascertain the consequences of such an understanding or agreement. Our own Code, article 2813, provides that “ a participation in the profits of a partnership carries with 'it a liability to contribute between the parties to the expenses and losses; ” and the next article, 2814, that a stipulation that one of the contracting parties shall participate in the profits of a partnership but shall not contribute to losses is void, both as it regards the partners and third persons. It surely will not now be seriously argued that because the plaintiffs were not aware at the time of the sale that the defendants were interested in the purchase and expected to share in the profits they are not liable. Such is not the doctrine either of our own or of any other system of law. Upon that subject there is no difference of opinion among the standard authors of this or any other enlightened country, or in the decisions of enlightened courts anywhere. The undiscovered partner is held liable when discovered everywhere.
It is undisputed that the several parties agreed together for the purchase and sale of sugars and molasses of a certain grade in advance, and that the purchase made from the plaintiffs was in pursuance of that agreement and so treated by all the parties. Nor is there any dispute of the fact that although the sugar and molasses purchased from plaintiffs were received and used in accordance with that agreement, the plaintiffs have not been paid for them. It is immaterial whether according to the contemplation of the parties as shown in the original letter from the defendants to Morton, Bliss & Co., Price, Hiñe & Tupper were to furnish a part of the money for the common venture, or whether, as stated by Mr. Lafitte, that was afterward changed and Morton, Bliss & Co. were to furnish the whole of the money for the contemplated purchases, and Price, Hiñe & Tupper only their skill and services in selecting and buying the merchandise. Indeed, if any thing, the latter view would militate most strongly against the defendants, for the reason that it puts entirely out of view the idea that more than one purchase or sale was contemplated (i. e.) the one with the money furnished for the purpose by Morton, Bliss & Co., who. as well as the defendants, are thus brought into direct connection with the purchase by Price, Hiñe & Tupper from *645the plaintiffs, and with the latter themselves. So that there is not even the intervention of a middle man at all, for it is not pretended that Price, Hine & Tupper were brokers or acted as such in this instance; and if it were so pretended, there is nothing in the record to sustain it. As we understand it, Morton, Bliss & Co. were to advance the money, John B. Lafitte & Co. to hand it over to Price, Hine & Tupper, upon the receipt from them of the warehouse receipts which it is well known, according to the custom of trade, are always passed when the contract of sale is agreed on, subject to the right of reclamation or enforcement of privilege within the time fixed by the statute in regard to the sale of agricultural products if not paid for; and that Price, Hine & Tupper were to select the sugars and molasses and go into the market to make the purchases, they being experienced dealers; while after the sale the three firms were to share in the profits in1 proportions defined in their contract; and as Mr. Lafitte says, to “ share in the losses,” also. Nothing more is wanting than this latter admission to do away with any possible idea, which, however, there is nothing else to support, that Price,' Hine & Tupper were either brokers or agents in this transaction; for we venture to assert that nowhere, under any system, has a mere broker or agent been held responsible for losses. Still less can it be said that Price, Hine & Tupper could be held liable for losses if they were vendors; and, indeed, there is nothing in the.record to support the theory that there was any agreement even for a sale from the latter either to Morton, Bliss & Co., or to them and Lafitte. & Co.; still less that there was any fixed price in money agreed on as between them and Price, Hine & Tupper, but only that the price agreed on between the plaintiffs and Price, Hine & Tupper was handed to them to be paid to the vendor, and that they did not do so.
It is not necessary at this late day to assert anew the well-established principle that a failure of one partner (if there be a partnership) to apply to the payment for goods purchased moneys entrusted to him by his copartner for that purpose, can not relieve the latter from after liability for the price. Nor is it necessary to consider at any length the provisions of our law regulating the rights and responsibilities of partners in commendam, since it is not even pretended that the defendants or any one else engaged in this venture were such partners. The position of defendants is that they were not partners at all, and no such stipulative writing or registry for the information of the public as is required in this modified partnership is any where shown in this record, while, on the contrary, it is shown that all the parties to thié venture were active participants in its management at some stage. If, then there was in this case neither agency nor resale nor partnership in commendam the conclusion is inevitable that it was a partnership, and the *646consequence of liability of the defendants as partners and as commercial partners at that must attach. Once a commercial partnership is' shown to exist, our law recognizes a modification or limitation of the liability of the partners in but one mode, and that is provided in the articles of our Code in regard to partnership in commendam. See O. C. articles 2839 — 2851. And once partnership is shown, liability as partners follows by all authority and under any system of law, here or elsewhere. We think an examination of the authorities relied upon by the defendants’ counsel demonstrates this as fully as those cited by the plaintiffs’' counsel, and Mr. Parsons, an eminent American writer to whom both have freely appealed, recognizes the fact that such is the general law, and that any modification of the consequences of partnership anywhere is the result of statutory provision, as we have. All that is pretended here is that such agreements and ventures as that which led to the suit at bar do not create a partnership, but only something called in com-i mon parlance a commercial adventure on joint account, by embarking 1 in which, though it involves and is designed for the purchase and sale Í of personal property for the joint profit and advantage, in definite pvoI portions, of all concerned, and that although liable as between them-j selves for any losses which may result from the venture, those.engaged jin it are not liable as partners to those from whom is purchased the property from the resale of which the expected profit is to be derived. Whatever maybe the case elsewhere.no provision is made under our law for such adventures as exceptions from commercial partnerships, and the consequent liability of those concerned. It may be said that this is a narrow view, at war with the general usage of the commercial world elsewhere. If this be so, the remedy is not with us but with another — the legislative department of the government — whose province-alone it is to bring the law of Louisiana on this subject in harmony with that which it is asserted prevails elsewhere. In this connection it may be remarked, however, that even under the “ Association en Participation” of France, none of the parties could absorb to himself the-object of the common venture to the prejudice of creditors and to that extent at least that he would have to account and pay over, while under our own law the partner in commendam can not withdraw the stock he has furnished if his partners are in failing circumstances or there is reason to apprehend their insolvency or that of the firm, O. C. article 2851; but the whole sum furnished is liable for the debts of the partnership, C. C. 2841; and that none of the cases relied upon by the defense and by a majority of the court present the same state of facts, especially with reference to joint liability for losses incurred, with that at bar.
•Under the testimony in this case’it will not be pretended that had-the sugars and molasses bought from plaintiffs been lost or destroyed *647subsequent to their purchase for joint account, whether before or-after the delivery by Price, Hine & -Tupper to the defendants of the warehouse receipts, that both they and Morton, Bliss & Co. would have been compelled under their agreement, as stated by the defendant Lafitte himself, to share the loss with Price, Hine & Tupper, and vice versa, and the express provision of our own Code; article 2864, “that a partner may be a creditor of the partnership not only for the sums which he has disbursed, but likewise for the obligations he has entered into bona fide for the partnership and for losses reasonably incurred in his administration,” is in strict accord with the agreement of the parties here.
The decisions of the courts of Louisiana have been so fully reviewed in the dissenting opinion of Mr. Justice Spencer, in which I concur, that it is unnecessary for me to say more in regard to them. They are in support of the views expressed in this opinion. Our law makes ample provision for legitimate profits or the opportunity to earn them by all who may choose to employ their capital, skill, or industry in the purchase and sale of our agricultural products or other personal property in open market and in open competition. I am at a loss to see the equities as against vendors who have not received the price in favor of those p who have annulled their own connection with or interest in the purchase-in order, as admitted here, to depress the price of any commodity or sale simply because those to whom they have entrusted the money to be used in the common venture with themselves have not so applied it. However widely established may be such a commercial usage, here or elsewhere, it-can not, in my opinion, be practiced without carrying with it as to the undisclosed parties in interest all the liabilities which attach to- secret partners any where. I yielded a reluctant assent to the decision in Chaffraix & Agar vs. Price, Hine & Tupper, reported in 29 Annual, out of deference to what seemed to me then the weight of authority and to the views of my associates. Further argument, examination, and reflection have convinced, me that my reluctance then was with good reason, and that that decision in that case -was erroneous.
For these reasons I dissent from the conclusions of the majority of the court in this case as well as those between other parties resting upon the same principles this day announced.