The other renewals, dated April 4, 1883, and March 15, 1884, were substantially like the original agreement of March 15, 1880, except that in the agreement of April 4, 1883, the rate of interest was specified as six per cent.

"L. W. COUNSELMAN & Co." Also the following indorsement thereon: "March 2, 1881. This contract and agreement is to continue one year longer on the same basis-i. e., from May 1st, 1881, until May 1st, 1882.

L. W. COUNSELMAN & Co." Also three further renewals of the agreement from year to year, the first of which was by letter, dated March 18, 1882, from L. W. Counselman & Co. to Perry, with the same heading as the original agreement, and saying: "We hereby renew the agreement made with you May 1, 1880, which is to the effect that we will guarantee you ten per cent interest upon loans amounting to $10,000, and that if the net profits of our business is over $10.000 for the year commencing May 1, 1882, and ending April 30, 1883, we will in lieu of the ten per cent interest give you ten per cent of the profits. We have two propositions for partnership

therefor to be divided equally between them does not create a partnership. La Flex v. Burss, 77 Wis. 638.

A contract for the loan of money to build houses, and to pay as compensation therefor a portion of the profits arising from their sale, does not constitute a partnership which will render the lender liable for a portion of a loss incurred. Smith v. Lennon, 37 N. Y. S. R. 937, 939.

If a person be held out as a partner, who is not such, it must appear that the holding out was done by him or by his consent, and it must have been known to the person seeking to avail himself of it. Seabury v. Bolles, 11 L. R. A. 136, 138, 52 N. J. L. 413, 51 N. J. L. 103.

A partnership is established by a common liability to creditors and a common right to the profits of the business, although in unequal proportions. Maloy v. Associated Lace Makers Co. 30 N. Y. S. R. 153.

An agreement to share equally in expenses, losses, and gains, cannot be treated as mere contract of employment, but must be regarded as a copartnership agreement. Smith v. Walker, 57 Mich. 456.

One who is to receive a certain share of the profits and bear a like share of the losses in the business of a firm may be a partner, although he contributes nothing but his services to the business. Paul v. Cullum, 132 U. S. 539 (33: 430).

A mere participation in profit and loss does not necessarily constitute a partnership, but there must be such a community of interests as empowers each party to make contracts, incur liabilities, manage the whole business, and dispose of the whole property. Rankin v. Fairley, 29 Mo. App. 687; Newberger v. Friede, 23 Mo. App. 631; Butler v. Merrick, 24 Ill. App. 628; Keely v. Gaines, 24 Mo. App. 506.

The rule that profit-sharing as compensation for services does not constitute parties copartners is not applicable where both parties contribute to the capital stock, and the agreement is not limited as to duration or confined to a single venture. Kingsbury v. Tharp, 61 Mich. 216.

The plaintiff further offered in evidence six promissory notes, amounting in the aggregate to $10,600, given by the firm to Perry in the months of March, May and June, 1884.

The plaintiff also called Scott as a witness, who testified that the firm was composed of L. W. Counselman and himself; that it was engaged in the fruit and vegetable packing and oyster business" in Baltimore; that Perry was in the stationery business in Philadelphia; that the $10,000 mentioned in the agreement was paid by him to the firm, receiving their notes for it, and remained in the business throughout, no part of it having been repaid; that from time to time he lent other sums to the firm, which were repaid; that he was an intimate friend of the witness and visited him every few weeks; that these visits were not specially connected with the business, though on such occasions Perry "usually went down to the place of business and talked business;" that he annually asked and received from the firm accounts of profit and loss; that the ac counts showed an annual profit, which varied

Where one is embraced in the title of the firm under the general description "& Co." he is a general partner. Podrasnik v. R. T. Martin Co. 25 Ill. App. 300.

To constitute a partnership there must be a lawful and valid executed agreement to enter into a partnership; and a mere understanding or agreement between two more persons that they will at some future time form or enter into a partnership will not of itself constitute a partnership. Buzard v. McAnulty, 77 Tex. 438.

An agreement between several to enter into and carry on a certain mercantile business under circumstances showing that they placed their money, effects, labor, and skill, or some or all of them, in the business, with the understanding that there should be a communion of profits,-constitutes the parties partners. Dubois v. Hoover, 25 Fla. 720.

The mere fact that parties collected money, gave receipts, hired and paid laborers, and had no settlement with each other, does not establish, but only tends to show, the existence of a partnership. Roper v. Schæfer, 35 Mo. App. 30.

A joint contract does not necessarily involve a partnership, and the joint contractors may show that their obligations inter esse, were limited to distinct portions of the general enterprise. Herbert v. Callahan, 35 Mo. App. 498.

A community of interest does not make a partnership. Morgan v. Farrel, 58 Conn. 413.

The joinder of two or more persons in a single adventure for their mutual advantages does not constitute them copartners in such sense as to oust a court of law of jurisdiction in respect thereto. Carter v. Carter, 28 Ill. App. 340.

A person cannot be held as a partner by creditors of the firm because of an instrument signed under a mistaken idea of its contents, where the creditors have not been induced by it to furnish credit. Butler v. Merrick, 24 Ill. App. 628.

An agreement whereby one person advances the capital and the other contributes services to a joint undertaking, the capital to be paid out of the stock, and the balance, after the payment of ex

from year to year, amounting for the second year to $11,000 or $12,000; that it being then found difficult to tell at the end of the year exactly what the profits would be, it was agreed with Perry that he should thenceforth [614] receive $1000 each year, leaving the final settlement until the whole business was settled up; and that he received under the agreement about $1500 the first year and $1000 each subsequent year. On cross-examination, the witness stated that the firm made an assignment to the plaintiff for the benefit of creditors on April 30, 1885; that their liabilities were from $60,000 to $70,000, about half of which was with collateral security, and he did not know whether it had been paid out of such security; that the assets realized less than $2000; that, so far as he knew, no dividend had been paid; and, in regard to the $10,000 received from Perry, the witness testified as follows: "Q. Mr. Counselman and yourself did owe this $10,000 to the estate of Mr. Perry, did you? A. They had my notes for it. Q. Did you or did you not owe it? A. I was capital he had in the business the same as ours. We owed it to him. Of course we owed it to him if we did not lose it."

At the close of the plaintiff's evidence, the defendant moved for a non-suit on the ground that there was no evidence to show that Perry was liable as a partner. The court so ruled and ordered a nonsuit. 29 Fed. Rep. 276. The plaintiff duly excepted to the ruling, and sued out this writ of error.

Messrs. Samuel Shellabarger and Jeremiah M. Wilson, for plaintiff in error:

The right of trial by jury in the courts of the United States is expressly secured by the 7th Amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in cases by the court without the intervention of a jury only when the parties waive their rights to a jury by a stipulation in writing.

Revised Statutes, SS 648, 649.

This constitutional right this court has always guarded with jealously.

Elmore v. Grymes, 26 U. S. 1 Pet. 169 (7: 224); D' Wolf v. Rabaud, 26 U. S. 1 Pet. 476 (7: 227); Castle v. Bullard, 64 U. S. 23 How. 172 (16: 424); Hodges v. Easton, 106 U. S. 408 (27: 169); Baylis v. Travellers Ins. Co. 113 U. S. 321 (28: 990); Randall v. Baltimore & O. R.

The delivery of a sum of money in trust to a person engaged in business, for investment therein, upon an agreement that it shall remain a specified time, and that a certain share of the profits shall be paid for its use, does not create a partnership. Williams v. Fletcher, 30 Ill. App. 219, aff'd. in 129 Ill. 356.

The contribution of money or property by an incoming partner is not essential to the creation of a partnership. It is competent for the partners, in consideration of the new partner's undertaking the entire charge and control of the business of the company, to give him an interest as partner. Paul v. Cullum, 132 U. S. 539 (33: 430).

The fact that a contribution by a member of a firm as special partner in another firm is in the form of a check of the former firm does not constitute the other partner in that firm a member of the new firm. Hall v. Glessner, 100 Mo. 155.

A dormant partner is one who is not known or does not appear as a partner, but who is a silent partner and partakes of the profits. Podrasnik v. R. T. Martin Co. 25 Ill. App. 300.

A partnership is created by an agreement under which one person advances money to another for investment in land on their joint account, the profits to be shared between them in a certain proportion. Tyler v. Waddingham, 8 L. R. A. 657, 58 Conn. 375.

Where a party enters into an agreement with another to look up desirable lands and bid them in at tax sales, the other party furnishing the money, and the profits to be divided equally, it constitutes a partnership, no matter in whose name the title to the lands is taken. Hunt v. Erikson, 57 Mich. 830.

A purchase of lands by one party at the expense of another and in his name, the former to make no charge for services, and both to share equally in the net proceeds upon the sale of the property, creates a partnership. Hyman v. Peters, 30 1. App. 134.

An agreement between two persons for the publi

necessary funds for publishing, and the other to devote his time and services and to receive therefor a share of the net profits, constitutes a partnership. Campbell v. Sheriaan, 29 N. Y. R. R. 156.

An agreement between two persons that one is to purchase lots and erect houses thereon and the other advance necessary moneys, the former to convey to the latter one of the houses when completed, or, at the latter's option in case the houses are sold, to pay to him one half the net profits,—is an executory contract of sale, and does not create a partnership. Demarest v. Koch, 31 N. Y. S. R. 399.

An agreement under which one party contributes a patent right and the other the money to manufacture the patented article, with equal division of profits, constitutes a partnership. Farr v. Morril, 53 Hun, 31.

Whether persons are liable as copartners does not depend upon the fact of their partnership inter se, but they may become such as to third persons by holding themselves out as partners. Selby v. McCullough, 26 Mo. App. 66.

Persons holding themselves out as partners will be held liable as such for goods furnished them at the request of either, even where there is no partnership agreement between them. Kritzer v. Sweet, 57 Mich. 617: Cornhauser v. Roberts, 75 Wis. 554.

To make one liable as a partner it is not sufficient that the person seeking to charge him as such supposed him to be a partner, unless he did something which gave the latter a right to so suppose. Cole v. Butler, 24 Mo. App. 76.

In the absence of a partnership in fact, merely sharing in profits does not create one a partner as to third parties who have not been legitimately led to believe that such relation existed. Colwell v. Britton, 59 Mich. 350.

Persons having a proprietary interest in a business and its profits are liable as partners to creditors. Magovern v. Robertson, 5 L. R. A. 589, 116 N. Y. 61.

A partnership may exist and the parties be bound, although there is no partnership name. Meriden Nat. Bank v. Gallaudet, 120 N. Y. 295.

sons were stated by Chief Justice Marshall in a general way as follows: "The power of an agent is limited by the authority given him; and if he transcends that authority, the act cannot affect his principal; he acts no longer as an agent. The same principal applies to partners. One binds the others so far only as he is the agent of the others. "A man who shares in the profit, although his name may not be in the firm, is responsible for all its debts." "Stipulations [restricting the powers of part ners] may bind the partners, but ought not to affect those to whom they are unknown, and who trust to the general and well established commercial law.' Winship v. Bank of United States, 30 U. S. 5 Pet. 529, 561, 562 [8: 216, 227, 228]. And the Chief Justice referred to Waugh v. Carver, 2 H. Bl. 235; Er parte Hamper, 17 Ves. Jr. 403, 412; Gow, Partnership, 17.

How far sharing in the profits of a partner ship shall make one liable as a partner has been a subject of much judicial discussion, and the various definitions have been approximate rather than exhaustive.

The rule formerly laid down, and long acted on as established, was that a man who received a certain share of the profits as profits, with a lien on the whole profits as security for his share, was liable as a partner for the debts of the partnership, even if it had been stipulated between him and his copartners that he should not be so liable; but that merely receiving compensation for labor or services, estimated by a certain proportion of the profits, did not render one liable, as a partner. Story, Partnership, chap. 4; 3 Kent, Com. 25 note, 32-34; Ex parte Hamper, above cited; Pott v. Eyton, 3 C. B. 32, 40; Bostwick v. Champion, 11 Wend. 571, and 18 Wend. 175, 184, 185: Burckle v. Eckart, 1 Denio, 337, and 3 N. Y. 132; Denny v. Cabot, 6 Met. 82; Fitch v. Harrington, 13 Gray, 468, 474: Brundred v. Muzzy, 25 N. J. L. 268, 279, 674. The test was often stated to be whether the person sought to be charged as a partner took part of the profits as a principal, or only as an agent. Benjamin v. Porteus, 2 H. Bl. 590, 592: Collyer, Partnership (1st ed.) 14; Smith, Merc. Law (1st ed.) 4; Story, Partnership, 55; Loomis v. Marshall, 12 Conn. 69, 78: Burchle v. Eckart, 1 Denio, 337, 341; Hailet v. Desban, 14 La. Ann. 535.

Accordingly, this court, at December term, 1860, decided that a person employed to sell goods under an agreement that he should receive half the profits, and that they should not be less than a certain sum, was not a partner with his employer. "Actual participation in the profits as principal," said Mr. Justice Clifford in delivering judgment, "creates a partnership as between the parties and third persons, whatever may be their intentions in that behalf, and notwithstanding the dormant partner was not expected to participate in the loss beyond the amount of the protits," or "may bave expressly stipulated with his associates against all the usual incidents to that relation. That rule, however, has no application whatever to a case of service or special agency, where the employé has no power as a partner in the firm and no interest in the profits, as property, but is simply employed as a servant or special agent, and is to receive a given sum

| out of the profits, or a proportion of the same. as a compensation for his services." Berthold v. Goldsmith, 65 U. S. 24 How. 536, 542, 543 [16: 762, 764, 765]. See also Seymour v. Freer, 75 U. S. 8 Wall. 202, 215, 222-226 [19: 306, 310, 313, 3141: Beckwith v. Talbot, 95 U. S. 289, 293 [24: 496, 498]; Edicards v. Tracy. 62 Pa. 374; Burnett v. Snyder,81 N. Y. 550, 555. Mr. Justice Story, at the beginning of his Commentaries on Partnership, first published in 1841, said: Every partner is an agent of the partnership; and his rights, powers, duties and obligations are in many respects governed by the same rules and principles as those of an agent. A partner, indeed, virtually embraces the character both of a principal and of an agent. So far as he acts for himself and his own interest in the commou concerns of the partnership, he may properly be deemed a principal; and so far as he acts for his partners he may as properly be deemed an agent. The principal distinction between him and a mere agent is, that he has a community of interest with the other partners in the whole property and business and responsi bilities of the partnership; whereas an agent, as such, has no interest in either. Pothier considers partnership as but a species of mandate, saying, Contractus societatis, non secus ac contractus mandati." Afterwards, in dis cussing the reasons and the limits of the rule by which one may be charged as a partner by reason of having received part of the profits of the partnership, Mr. Justice Story observed that the rule was justified, and the cases in which it had been applied reconciled, by considering that "a participation in the profits will ordinarily establish the existence of a partnership between the parties in favor of third persons, in the absence of all other opposing circumstances;" but that it is not “to be regarded as anything more than mere presumptive proof thereof, and therefore liable to be repelled and overcome by other circumstances, and not as of itself overcoming or controlling them;" and therefore that "if the participation in the prof its can be clearly shown to be in the charac ter of agent, then the presumption of partner ship is repelled." And again: "The true rule, ex æquo et bono, would seem to be that the agreement and intention of the parties themselves should govern all the cases. If they intended a partnership in the capital stock, or in the profits, or in both, then that the same rule should apply in favor of thirt persons, even if the agreement were un known to them. And on the other hand, if no such partnership were intended between the parties, then that there should be none as to third persons, unless where the parties had held themselves out as partners to the public, or their conduct operated as a fraud or de ceit upon third persons." Story, Partnership, S$ 1, 38, 49.

Baron Parke (afterwards Lord Wensleydale) appears to have taken much the same view of the subject as Mr. Justice Story. Both in the Court of Exchequer, and in the House of Lords, he was wont to treat the liability of one sought to be charged as a dormant partner for the acts of the active partners as depending on the law of principle and agent. Beckham . Drake (1841) 9 Mees. & W. 79, 98; Wilson v.