April, 1842.

Stearns

D.

Haven et al.

LAMOILLE, the opinion that the question does not here arise, whether the written contract, bearing date March 28, 1840, made these defendants partners or not. Whether persons are partners inter se, may depend on their contract between themselves. Whether they are partners as to others is to be learned from their conduct. In a suit in favor of a person who credits others as partners, it is rarely necessary to give them notice to produce their articles of partnership; but the proof is drawn from other sources. It is, also, not material, except on a plea in abatement, whether others are partners or jointly concerned with the persons sued. It was, therefore, of no consequence on the trial to inquire whether Eli Stearns was a partner with the defendants, or only an agent.

The paper, executed on the 28th of March, may, or may not express their intentions, and if it does not, may embarrass them in controversies between themselves. If they considered it as a contract of partnership, and so declared to the witnesses, and conducted as such, the present plaintiff might deal with them as partners, and his knowledge of the contract, or its terms, would not alter his rights nor vary their responsibility.

The testimony, as detailed in the bill of exceptions, is very clear and decisive, that all the defendants avowed the intention of becoming partners, and after executing the writing declared that they had become partners. However desirous, therefore, the defendants may have been to obtain the opinion of the court on the trial, as to the legal effect of that contract, and whether it did constitute a partnership, and to what extent, the plaintiff very prudently avoided placing his case on that ground alone. The charge of the court put the effect of the writing out of view, except as to its execution and left it to the jury to say whether the defendants had conducted and held themselves out as partners, and is wholly unexceptionable. The verdict of the jury has settled the fact that they considered themselves and conducted and acted as such. No question was made either at the county. court or here, but that the note was given for a consideration within the scope and design of the partnership, if any existed.

The judgment of the county court is affirmed

WINDSOR COUNTY.

FEBRUARY TERM, 1841.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

Where a contract is made by one person, which in some sense ultimately concerns others, the question, whether the one contracting is personally bound by stipulations contained in it, is one of intention mainly.

In such case, if the party contracting have no authority from the principal to make such contract on his behalf, or if the other party knowing all the facts consent to look to his credit, or if he require the assurance of the agent, he will be personally liable upon the contract.

The construction of a contract depends upon its terms, the subject matter, and the circumstances attending the transaction, or which were then anticipated, and is not affected by the occurrence of events not then ap prehended by either party.

GENERAL INDEBITATUS ASSUMPSIT.

Plea, non assumpsit.

The plaintiff sought to recover in this action for boarding cadets attending the defendant's military academy at Middletown, Connecticut, under a contract relating thereto.

In the county court, the case was referred, by agreement of parties, to a referee to take the accounts of the parties and report the facts relating thereto.

WINDSOR, February, 1841.

Hinsdale

v

Partridge.

The referee afterwards reported, in substance, as follows: The plaintiff furnished board for defendant's scholars, or cadets, on the credit of defendant's school from October 3, 1825, to September 1, 1828, to the amount of $49,979.79. A portion of this account was furnished under a written contract between the parties of the following tenor;

'Articles of agreement between Alden Partridge and Theo'dore Hinsdale both of Middletown, Connecticut. Said Hinsdale is to furnish the cadets of the military academy ' at said Middletown with boarding at the house built for that 'purpose, for one year, from and after the 4th day of De'cember instant, to commence about the middle of January 'next, at the expiration of the vacation, to be fed with good 'and wholesome food, with a reasonable plenty but not ex'travagantly, to be well cooked and in good order, and at 'such times in the day as said Partridge may choose. Also, 'to furnish boarding for not less than eighteen or more than twenty beneficiaries, but to be the same number as last 'year, who in consideration of their board are to clear the tables in the dining halls after meals and carry such of the 'furniture as may be necessary and place on the table on ' each side of the dumb waiter, and such other as may be 'necessary to carry to the west side of the hall; also, to 'wait on the tables during the time of meals, and further, 'each beneficiary is to cut and split, as said Hinsdale may 'direct, three cords of wood in the course of the year. Said Hinsdale to have the use and improvements of the land in the rear of the academy, as last year.

'As respects compensation for boarding the cadets as afore'said, said Partridge is to pay to said Hinsdale at the rate of one dollar and seventy-two cents per week, for each one 'during the time of his boarding. In this sum is included the ' rent which was agreed to be paid on the erection of the boarding house built by John and Daniel Hinsdale, which ' agreement is left for safe keeping in the hands of John L. 'Lewis, Esq., and all past rent is to regulated by said writing. No payment for board is to be considered due until 'the end of each quarter of the year for said quarter, when 'sufficient funds are to be provided for said Hinsdale's wants to furnish the boarding house for another quarter as 'he may need them. And in case the parents or guardians

' of said cadets delay to pay their bills in season it is un'derstood that said Partridge is not to pay out of his own 'funds for that purpose, except for the necessary expenses of the house as aforesaid. At the expiration of the year 'the amount of all boarding bills of those, whose parents or 'guardians have failed or become insolvent, are not to be 'paid by said Partridge except such proportion as he has ' received, to be averaged on the whole amount of their bills, 'and, in case of final loss on said bills, said Hinsdale is to 'bear his proportion of loss which his board bill amounts to, in proportion to the whole amount of their several bills at 'the academy and receive the like proportion of all payments ' on said insolvent bills whenever paid to said Partridge.

At the close of the year, should said Hinsdale leave the 'boarding house, said Partridge is to purchase at a fair price, 'all the moveables, cooking utensils, crockery, &c., in the 'house which are necessary to manage and carry on the same 'as a boarding house.

Should it be required by said Partridge, the sick cadets are to be kept at the boarding house in the best manner 'said Hinsdale is capable of under all circumstances, until ' able to return to their duty, at a fair price. And all do'mestics, servants, and others employed in and about the 'boarding house are to be of good moral character, and to 'conform to all the police regulations of the academy.

'Middletown, December 2, 1826.'

A portion of the board was furnished under a verbal contract, prior to the time when the written one took effect, but the verbal contract was, substantially, the same as the written one above set forth.

The following articles were among the printed regulations of the defendant's academy, established and published by him in 1825.

6

Article 5. Every candidate for admission, whose parents or guardians reside more than one hundred and fifty miles 'from Middletown, will be required, when he joins the insti'tution, to deposite in the hands of the superintendant, two 'hundred dollars, and, at the expiration of six months, an ad'ditional sum of $100.00, must in like manner be deposited. 'The superintendant will be accountable for all the money 'thus deposited.

WINDSOR, February, 1841.

Hinsdale

v.

Partridge.

Article 7. During every succeeding year, after the first, an advance will be required, at the commencement of the 'year, of one half the estimated expenses of the year, and a 'like amount at the commencement of the second half year. "The amount to be made out as stated in article 5.

'Article 8. Those, who reside at a distance not exceeding 'one hundred and fifty miles, will be required to pay the 'first quarter's expenses in advance, and afterwards to settle the bills at the expiration of each quarter.'

It was admitted that the plaintiff had knowledge of these regulations when they were promulgated in 1825, but no testimony was introduced to show that they were either observed or disregarded in the settlement of the bills.

On the first day of May, 1830, the parties stated their accounts, and the balance then found due to the plaintiff for board was $3,736.67, which was to be paid according to the terms of the contract of December 2, 1826, above set forth. Since that time there had been paid to the plaintiff, at different times, the sum of $1,522.97.

The referee reported particularly the amounts due to the defendant from the respective cadets who had attended the defendant's academy, their parents or guardians, at the time when the plaintiff ceased boarding the cadets, making the sum of $19,924.05; that, of this sum, $4,517.00 was for board, and that the loss on the whole amount thus due was $8,500.62.

Other facts than those above stated were reported by the referee, but, as they were not passed upon in this court, it becomes unnecessary to state them. The facts above stated, and what are contained in the opinion of the court, sufficiently present the questions here decided.

Upon the coming in of the referee's report, the defendant insisted that he was not liable to the plaintiff except so far as he had received money for boarding the cadets, and that the plaintiff should bear a proportionate share of the loss from bad debts. But the county court decided that the plaintiff was entitled to recover the balance due to him from the defendant, appearing from the statement of their accounts by the referee, and interest, without any deduction on account of such losses, except such as it was stipulated in the