belonged to himself. Speed Butler." The signatures to this instrument were shown to be those of Speed Butler and appellee.

The cashier of appellant bank testified that Speed Butler had for some years been running a coal mine near the city of Springfield, Ill., and kept an account with the bank in the name of Speed Butler & Co., and borrowed money from time to time of the bank; and the note in suit was a renewal of the aggregate amount of several smaller notes theretofore made, the first of which loans included in those smaller notes was made in November, 1881. The first knowledge the cashier had of the written agreement was derived from Speed Butler, who gave him information because of which he examined the records and read the agreement as recorded. That, as an officer of the bank, he conducted for the bank the negotiations between it and Speed Butler & Co. for the loans, and he did not believe Speed Butler was responsible financially, but believed appellee was wealthy and responsible. That appellee lived within six blocks of the bank, and he frequently saw her, but never said anything in reference to the partnership. That he had seen the billheads of the firm of Speed Butler & Co., with the names of Speed Butler and Wirt Butler as the partners, and did not remember whether Salome Butler's name was on any of those billheads. Joseph Bunn, a clerk in the bank, testified to frequent loans made to Speed Butler & Co., and about the time of those loans, and produced from the letter files of the bank a letter written and signed by Speed Butler on his personal business, which letter was written on a sheet of paper, with the letter head of Speed Butler & Co. printed thereon, and in the upper left-hand corner the name of Speed Butler printed, and the name under it, S. E. Butler. The testimony of H. W. Butler is that he entered the employ of Speed Butler, who was engaged in running a coal mine, and, after he had been so engaged for some time, it was contemplated between Speed Butler and himself that they would enter into a partnership, and with that object in view he was there from December, 1880, until the summer of 1881, and it was during that time that the billheads were printed, and the style of firm established of Speed Butler & Co., and the names of the partners printed thereon as Speed Butler and H. W. Butler; but the proposed partnership was never consummated, but the business was thereafter carried on under the name of Speed Butler & Co. That while he was in the service of Speed Butler he was engaged about the office, and in charge of much of the business, and had a general knowledge of the transaction, and appellee was in no way connected with the business. He further states, after examining the billhead on which the letter of Speed Butler identified by Bunn was offered in evidence, that the said letter was written on paper on which the bill

heads were printed, when it was proposed that he should become a partner; and that from an inspection his initials, "H. W.," were attempted to be erased, and the initials "S. E." written in place. That he had a knowledge of the business as clerk, bookkeeper. and salesman. The appellee testifies that she never had or knew the contents of the instrument offered in evidence until October or November, 1884, and never had possession of a paper purporting to convey her an interest in a coal mine, and providing she should be a sharer in its losses. She further states: "I first learned of that paper from brother Wirt [Henry Wirt Butler], who brought it to me, and said he got it from my brother Speed [Butler]. On or about the month of May, 1881, my brother Speed was indebted to me about $3,500, exclusive of interest, for money lent. security on the mine premises for the debt. saying it was security to me, but I don't know that the paper [Exhibit 2] is the same. He asked me to sign it. I signed it. I didn't read it. I signed it because I had perfect confidence in my brother, and supposed it was all right. He asked me to sign it, as being necessary to giving me security. I would not have signed it if I had known what it really was. I never had anything to do with the mine; * was never

He was to give me and the works and He gave me a paper

there; never to the office; never shared the profits or losses of the business; never authorized any one to carry on the business for me. Until this and other suits were brought, I never heard myself called a partner. Never heard my brother Speed, or any one in the family, call me a partner. I never held myself out as a partner. Neither principal nor interest of the moneys borrowed from me by my brother Speed have been paid to me. I never was consulted about the adoption of the firm name, Speed Butler & Co. I never claimed to be partner; nor did he ever claim, to my knowledge, that I was a partner. I lent my brother [Speed] other money after he got the $13,000. In October or November, 1884, I lent him $5,000 more. He gave me but the one paper as security." That she knew nothing of, and never authorized, the instrument to be recorded. William H. Staley, a clerk and bookkeeper at the mine for Speed Butler from 1882 until his death, in 1885, testified that appellee's name never occurred in the business except in the purchase of coal for individual use, and Speed Butler stated that he had no partner. The testimony of Thomas Gray is similar to Staley's. Five other witnesses, who had many and continued transactions with Speed Butler & Co., testified that in all their transactions the name of appellee as a partner was never known. Two contracts were entered into by Speed Butler to furnish coal for the state, and bonds for compliance therewith entered into by him,-one in 1880, for two years, and one in 1882, for two years.

On the first Salome E. Butler was surety, and on the second Salome E. Butler, Thomas Gray, and P. W. Harts were the sureties. Some time prior to 1883 tile works were established in connection with the mine, and on October 5, 1883, Speed Butler sold and conveyed to one Ripley a half interest in the tile works, who entered into possession of that interest. Numerous propositions of law were presented by plaintiff to be held, which, in effect, sought to draw the legal conclusion of the liability of appellee from the facts, and which were refused by the trial court. The cause was tried before the judge without a jury, and a finding and judgment entered for defendant, and the plaintiff appealed to the appellate court of the third district, where the judgment was affirmed; and the plaintiff prosecutes an appeal to this court, and assigns for error the judgment of the appellate court in affirming the judgment of the circuit court.

John Mayo Palmer and Connolly & Mather, for appellant. J. A. McClernand and W. J. Butler, for appellee.

PHILLIPS, J. (after stating the facts). The question presented by the foregoing facts appearing in this record is whether the appellee is liable to appellant as a partner of Speed Butler & Co. If such partnership existed, it was by reason of the written agreement signed by appellee and Speed Butler. Where a partnership is claimed to exist, not in writing, the intention of the parties is a material fact, to be ascertained from their conduct and declarations; but where the agreement is in writing its true construction must be determined, and from that construction it is to be found whether a partnership exists. We shall only consider the written agreement in evidence in this case in relation to the question as to what effect that agreement had between third parties and the signers of the agreement, and its construction in that connection. By the terms of this agreement it appears that a mine was already opened for mining coal, which mine was known as the "Black Dia mond Mine," and the tract of land on which it was opened described, and by the terms used certain legal effects resulted which may be summarized: (1) It created between Speed Butler and Salome E. Butler the relation of co-owners of the coal mine. (2) It created between them the relation of joint proprie tors of the business of operating the mine. (3) It created the relation of principal and agent between Salome E. Butler and Speed Butler for "the entire management and control of all matters in connection with the mine." (4) It gave to each the right to participate in the profits, and imposed upon each the duty of bearing proportionately the losses of the business of operating the mine. The instrument contained other terms, providing for the payment of royalties upon coal hoisted, limiting the sources from

whence coal should be taken, making provision against the death of Speed Butler, forbidding the sale of the interest of Salome E. Butler without the consent of Speed Butler, and providing for the enlargement of the business by constructing tile works, and for the payment of the expenses of their construction, and the division of the profits and losses of their operation. These provisions are each and all consistent with the general purpose of the agreement. The entire management and control of all matters in con nection with the mine by Speed Butler, being provided in the agreement, was within the power of the parties to so contract. 1 Lindl. Partn. (Am. Ed.) p. 2; Morse v. Richmond, 97 Ill. 303. The agreement providing for the proportionate interests of the signers of the agreement, and providing for the operation of this mine under the entire management and control of one of the signers of the agreement, and providing for a proportionate share in the profits or losses, creates their relation to third persons doing business with them having knowledge of such agreement. It is said in Lindley on Partnership (page 55) that: "Tenants in common or joint tenants of a mine or quarry may or may not be partners, and the mine or quarry itself may or may not be a part of the common stock. But it is highly inconvenient, if not alto gether impossible, for co-owners of a mine or quarry to work it themselves without becoming partners, at least in the profits of the mine; and persons who work a mine or quarry in common are regarded rather as partners in trade than as mere tenants in common of land. The co-owners of mines may be partners, not only in the profits, but also in the mine itself. The co-owners are then partners to all intents and purposes, and their mutual rights and obligations are determined by the law of partnership as distinct from the law of co-ownership." In Fougner v. Bank, 141 Ill. 124, 30 N. E. 442, the court cites with approval Cox v. Hickman, 8 H. L. Cas. 268, as follows: "It is often said that the test, or one of the tests, whether a person not ostensibly a partner is nevertheless, in contemplation of law, a partner, is whether he is entitled to participate in the profits. This no doubt is, in general. a sufficiently accurate test, for a right to participate in profits affords cogent-even conclusive evidence that the trade in which the profits have been made was carried on in part for or on behalf of the person setting up such a claim. But the real ground of liability is that the trade had been carried on by persons acting on his behalf. When that is the case, he is liable on the trade obligations, and entitled to its profits, or to a share of them. It is not strictly correct to say that his right to share in the profits makes him liable for the debts of the trade. correct mode of stating the proposition is to say that the same thing which entitles him to the one makes him liable to the other.

The

namely, the fact that the trade has been carried on in his behalf, i. e. that he stood in the relation of principal towards the persons acting ostensibly as the traders by whom the liabilities have been incurred, and under whose management the profits have been made." On thus quoting Cox v. Hickman, this court adds: "In the application of this rule many decisions are to be found by courts of last resort in this country to the effect that, notwithstanding a party may contract to receive a part of the profits of a business, he cannot be held liable as a partner. On the other hand, many otherssometimes by the same courts-hold the contrary. These cases are all reconcilable on the distinction that in the first class of cases there was a mere hiring of services, property, or money, to be paid for out of the profits of the business in which it was engaged; while in the latter there was a proprietary interest in the business." It was held in Meehan v. Valentine, 145 U. S. 622, 12 Sup. Ct. 972: "In the present state of the law upon this subject it may perhaps be doubted whether any more precise general rule can be laid down than, as indicated at the beginning of this opinion, that those persons are partners who contribute either property or money to carry on a joint business for their common benefit, and who own and share the profits thereof in certain proportions. If they do this, the incidents or consequences follow that the acts of one in conducting the partnership business are the acts of all; that each is agent for the firm and for the other partners; that each receives part of the profits as profits, and takes part of the fund to which the creditors of the partnership have a right to look for the payment of their debts; that all are liable as partners upon contracts made by any of them with third persons within the scope of the partnership business; and that even an express stipulation between them that one shall not be liable, though good between themselves, is ineffectual as against third persons." On considering this agreement under any of the authorities above cited, it must be held that, according to its terms, it clearly creates a partnership, to be so regarded and treated by any person having notice thereof, doing business with Speed Butler in the line of business by the agreement to be done and performed. The agreement reduced to writing must be presumed to speak the intention of the parties who sign it. It speaks for itself, and the intention with which it was execut ed must be determined from the language used to express that intention. It is not to be changed by extrinsic evidence as to how it was understood or what was intended. Gardt v. Brown, 113 Ill. 480; Lintner v. Milliken, 47 Ill. 178; Fougner v. Bank, supra. Nor is appellee to be exempt from liability by reason of the fact that she did not know the contents of the statement made by her brother as to its contents. A woman of edu

cation, able to read and write, who deliberately signs a written agreement without informing herself as to the nature of its contents, when that agreement may be used to the prejudice of third persons who may give credit on the strength of it, cannot be permitted to allege as a matter of defense her ignorance of that which it was her duty to know, where the means of information were within immediate reach, of which she neglects to avail herself. Black v. Railway Co., 111 Ill. 358. And however the representations made by Speed Butler might affect the question, as between himself and appellee, the question was one between themselves, if appellee permitted herself to be held to the world as a partner. The rule is different where the rights of third persons are involved. In such case she is estopped from denying the existence of a partnership. hoff v. Dudley, 40 Ill. 406.

Nie

The subject-matter to which the agreement related-a coal mine, already opened-was either real estate or a chattel real, and hence was an instrument that could properly be recorded, as it conveyed an interest, if not in real estate, yet in a chattel real; and, when found on record by the cashier who examined the record, he could, from its terms, correctly deduce the conclusion that a partnership existed. Signing that agreement without examination, and putting it in the power of Speed Butler to put the same so signed on record, with a clause therein giving him "the entire management and control of all matters in connection with the mine," precludes her from insisting that she should have been consulted or inquired of by appellant before giving credit on her name. She cannot be heard to say she did not act or do anything under the contract as a partner, for here again she was by the terms of her contract precluded from doing anything as an active member of the firm; and her not doing anything can create no presumption in her favor, as she had a right to legally so contract. The testimony of the cashier is that he examined the agreement as recorded, and from that reached the conclusion that ap pellee was a partner, and gave credit accordingly, and but for that would not have extended further credit to Speed Butler & Co., or advanced additional sums of money. Here is an agreement in writing, signed, which by its terms constitutes a partnership; an agreement concerning a subject-matter that it was proper it should be recorded. The cashier of appellant examined that record to find if a partnership existed, before extending credit. The appellee, who signed the agreement without examination, put it in the power of Speed Butler to have the same recorded, and procure credit because thereof. Appellant extended credit because of it, and, if a loss is to be sustained, it should not be sustained by appellant. The fact that Speed Butler and Salome E. Butler are each mentioned in the agreement as trustees does not change

the terms of the agreement, or affect the notice. So far as appellee was concerned, she is not described as a trustee for any person, and is sued in her individual, and not in a representative, capacity. With a part. nership thus formed, no question as to the liability of the trust estate of any cestui que trust arises on this record. Neither does the fact that by the agreement no firm name was adopted, and the time the partnership was to continue was not stated, render the agreement invalid.

Appellant asked the court to hold as law five different propositions, which ought to draw the legal conclusion from the evidence that a partnership existed, which were refused. With the evidence of the notice of the agreement had by appellant, each of those propositions should have been held, and it was error to refuse to hold the same. We are of opinion that the circuit court erred in its finding and entering judgment against the plaintiff, and the appellate court erred in affirming the judgment of the circuit court. The judgment of the circuit court and of the appellate court is reversed, and the cause remanded. Reversed and remanded.

SHOPE, J., dissenting.

MARTIN et al. v. COMMISSIONERS OF HIGHWAYS OF SCOTLAND TP. et al.1 (Supreme Court of Illinois. April 2, 1894.)

WRIT OF ERROR-RELEASE-PLEA.

Upon writ of error to a judgment quashing a writ of certiorari sued out for the purpose of reviewing the action of highway commissioners in laying out a highway, a plea of release of errors by one of the landowners who did not join in the writ of error is bad.

Error to circuit court, McDonough county; Charles J. Schofield, Judge.

Petition of Jeremiah Martin, Robert Walker, an insane person, by James A. Walker, his conservator, and Lee G. Robeson, against the commissioners of highways of Scotland township, to review the opening of a highway. Defendants obtained judgment. titioners bring error. Reversed.

Pe

Neece & Son and Baily & Holly, for plaintiffs in error. Sherman & Tunnicliffs, for defendants in error.

WILKIN, J. This was a petition by plaintiffs in error for a common-law writ of certiorari to bring up the proceedings by defendants in error ordering the opening of a highway. By agreement of parties, the issuing of the writ and a formal return thereto were waived, and copies of all records, files, and papers attached to and made a part of the petition for the writ were to be taken and considered by the court on the hearing as the return. At its September

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

term, 1892, the court overruled all objec tions by petitioners to the record, and entered judgment quashing the writ, and for costs. From that order this writ of error is prosecuted. At the January term, 1894, the case standing for hearing upon our docket, the defendants in error filed a plea of release of errors, and plaintiffs in error demurred thereto. Thereupon, in pursuance of the established practice in this court, the case was taken for decision upon the plea and demurrer, and, if the plea is found bad, the judgment below must be reversed, without reference to the question whether the errors were well assigned. Page v. People, 99 Ill. 418, and cases cited; Beardsley v. Smith, 139 Ill. 280, 28 N. E. 1079. One of the objections in the circuit court to the proceedings laying out the highway was that it did not contain a written release of damages by Mary J. Pace, one of the landowners, over whose land the road was established. The plea of the release of errors avers that on the 9th day of December, 1893, Mrs. Pace, by her deed of that date, released to defendants in error “any and all errors in the record and proceedings aforesaid, so far as the same relates to her, as by the said deed and reference thereto will more fully appear." The plea concludes: "Wherefore they pray judgment if plaintiffs in error ought to maintain their said writ of error against them." The plea is so clearly insufficient as a release of any errors assigned in this court that it must have been filed through inadvertence. The question here is, did the circuit court commit error in the judgment rendered by it at its September term, 1892. That question can only be determined upon the case as there presented. If error was committed on the record of the road proceeding as it then stood (which the plea admits), no subsequent change or amendment of that record could work a re lease of such errors. The parties assigning error here are Jeremiah Martin, Robert Walker, James A. Walker, and Lee G. Robeson. The plea in no way connects either of them with the act of Mrs. Pace which is pleaded as a release of errors. It will scarcely be contended that Mrs. Pace, not a party, could of her own motion release errors assigned by plaintiffs in error. The demurrer to the plea will be sustained, and the judgment of the circuit court reversed. Reversed.

id failed to place lights or danger sigit. There was evidence that the gravs sufficiently shown by the street clecS, but the jury specially found that not the case. Held, that an instrucif the city was guilty of negligence as in the declaration, and in consequence tiff was injured while exercising due was entitled to recover, was not misis implying that the plaintiff might rethe city failed to place lights on the le, even though the place was sufficient1 by the electric lights.

1 from appellate court, second dis

KIN, J. Appellee recovered a judggainst appellant in the circuit court he county for the sum of $5,000 for a al injury alleged to have been re- by him through the negligence of the 1 keeping its streets in a safe condiThe appellate court affirmed that judgand the eity appeals.

negligence charged in the first count è declaration is that the city "placed and permitted to remain in the middle e of its streets, a large pile of gravel, he plaintiff, not knowing the same was , drove his wagon upon such pile of l, whereby it was turned over, throwim to the ground, the wagon falling him, etc. The second count charges same negligence as to putting and sufg the gravel to remain in the street, and the failure to place lights or danger sigupon or near the same. The only subtial ground of reversal insisted upon is the giving of the second and sixth ructions on behalf of the plaintiff. The cism made upon these instructions is the e. They each tell the jury that if they eve from the evidence that the defendwas guilty of negligence as charged in declaration, and in consequence of such ligence the plaintiff was injured while he rcised due care, the plaintiff is entitled recover. The contention is that, in view the allegation in the second count as to e omission to place lights or signals of nger upon or near the alleged obstruction, ese instructions are misleading, and the hole argument is based upon the proposin: "It does not follow that in this case e city was guilty of negligence that would arrant a recovery, because no lights or othsignals of danger were placed on or near e pile of dirt or gravel, if that place was fficiently lighted otherwise, so that a peron could, by the use of his ordinary sense, ee the dirt or gravel, and by the exercise ordinary care avoid it." It is said there was at least a conflict in the evidence as to

whether or not the place was not sufficiently lighted by the electric lights of the city to enable any one to readily discover the gravel pile, and it is assumed that the instructions, when applied to the second count, take from the jury all consideration of that fact. In other words, the instructions seem to be understood as telling the jury that, if they believe from the evidence that the city fails to place lights or danger signals at or near the obstruction in the street, and plaintiff was injured, using due care, he should recover, notwithstanding the place was abundantly lighted from the electric lights of the city. The argument ignores a very substantial qualification found in both instructions, viz.: "And if you further believe from the evidence that in consequence of such negligence on the part of the defendant, if shown by the evidence, the plaintiff was injured," etc. Applied to the second count, these instructions told the jury that they must not only find that the city was negligent in not placing signals or lights, but also that in consequence of that failure the plaintiff was injured. Therefore, according to the plain language of the instructions, if the jury believe that because of electric lights signals of danger were unnecessary to prevent the injury to the plaintiff if he had used due care, he could not recover. We are wholly unable to perceive how these instructions, when fully and fairly considered, tended in the slightest degree to take away from the consideration of the jury any evidence in the case as to the sufficiency of the city lights, to enable the plaintiff by the use of ordinary care to discover and avoid the danger. Not only so, but the attention of the jury was directly called to that question by the request of the defendant that they should find specially whether "the electric lights of the city did light the place where the alleged accident occurred at the time so that the plaintiff, by the reasonable exercise of his senses, might have seen that there was gravel on the street and avoided it," to which they answered, "No." The city cannot now be heard to gainsay that finding. It will not do to say that an electric light upon a street, however bright, can always take the place of danger signals, where temporary obstructions are placed upon them. The object of a danger signal is to direct the attention to a particular object, and warn those approaching of something unusual. The electric light may enable those passing over the streets to see the way, and avoid others, and things generally found on the street, but they give no special warning whatever, and, as is well known from experience, are often deceptive and bewildering. But these considerations are of little importance in this case. We think the instructions complained of are free from error. and perfectly fair to appellant. Whether the verdict is just upon the whole case is one which we are prohibited from consider