On Motion for Rehearing.
Our original opinion contains this statement : “Certainly he did not agree to share any losses, had there been losses instead of profits under the contract.” Appellant says that we are in error because if appellant and appellee were engaged in a joint venture or partnership, as appellant contends, appellant would have been responsible for losses as a matter of law even in the absence of an express agreement that the partners would be liable for losses. 68 C.J.S. Partnership § 96, p. 536. Appellant says that our statement ignores this important principle of law, and instead tries to say that where no statement is made as to the sharing of losses, no partnership exists.
Appellant has mistakenly interpreted the quoted statement. It was not made as a conclusion of law, but as a statement of fact. It is a fact that the written contract entered into between appellant and appellee contains no provision as to sharing of losses by appellant. It is silent on that question. Such fact, though not conclusive, may be taken into consideration along with other evidentiary facts in determining whether the contractual relationship of the parties constituted a partnership.
*185In support of our holding we quote from one of the cases cited by appellant, Davis v. Gilmore, 244 S.W.2d 671, at pages 673, 674: “The absence of an express provision obligating the parties to share in the losses is also important and indicates that no partnership existed. Giddings v. Harding, Tex.Com.App., 267 S.W. 976; Paggi v. Quinn, Tex.Civ.App., 179 S.W.2d 789; Watson v. Edinburg Securities Company, Tex.Civ.App., 68 S.W.2d 644. But this feature too is not controlling. Bivins v. Proctor, 125 Tex. 137, 80 S.W.2d 307, Id., Tex.Civ.App., 49 S.W.2d 824; Sturdevant v. Hooper, Tex.Civ.App., 101 S.W.2d 379.”
Appellant says that we were in error in ■citing Colten v. Jacques Marchais, Inc., Mun.Ct.N.Y., 61 N.Y.S.2d 269, because the holding in the Colten case is contrary to the later decision of Hochstadter v. H. Tarr, Inc., 188 Misc. 561, 68 N.Y.S.2d 762; and that in a still later case, Universal Map Co., Inc. v. Lutz & Sheinkman, 194 Misc. 938, 86 N.Y.S.2d 795, it is specifically stated that the Hochstadter case overruled the Colten case.
The Colten case was cited by us merely for its definition of the word proprietary. The case was overruled by later cases on ■other grounds. Nothing was said in the later cases cited by appellant about any ■error in the Colten case in regard to its ■definition of the word proprietary. We think the Colten case is still authority for the definition given.
The motion for rehearing is overruled.