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sion on the subject of partnership liability. The following authorities, among the many, contain a thorough review of the decisions on the old rule, as it is called, and the modifications thereof: Eastman v. 647 Clark, 53 N. H. 276; 16 Am. Rep. 192; Parchen v. Anderson, 5 Mont. 438; 51 Am. Rep. 65; Boston etc. Smelting Co. v. Smith, 13 R. I. 27; 43 Am. Rep. 3; Culley v. Edwards, 44 Ark. 423; 51 Am. Rep. 614; Denny v. Cabot, 6 Met. 82; Meehan v. Valentine, 145 U.S. 611; Beecher v. Bush, 45 Mich. 188; 40 Am. Rep. 465. This court, in the case of Dubos v. Hoover, 25 Fla. 720, quoted with approval the definition of a partnership given by Judge Story, viz: “Partnership, often called copartnership, is usually defined to be a voluntary contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a communion of the profits thereof between them”: Story on Partnership, 6th ed., sec. 2. It seems that when Judge Story wrote his book on Partnership he conceived the liability of one sought to be charged as a partner to rest upon the law of principal and agent, and his view is quoted with approval in one of the opinions delivered in the case of Cox v. Hickman, 8 H. L. Cas. 268.
A reference to agency as a test of partnership has not, it seems, proven a correct guide in many cases, as agency results from partnership rather than partnership from agency. It is said in Meehan v. Valentine, 145 U. S. 611: "Such a test seems to give a synonym, rather than a definition, another name for the conclusion, rather than a statement of the premises from which che conclusion is to be drawn. To say that a person is l; gle as a partner who stands in the relation of principal to those by whom the business is actually carried on adds nothing by way of precision, for the very idea of partnership includes the relation of principal and agent." In this case it is said: “The requisites of a partnership are that the parties must 618 have joined together to carry on
trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits.” Judge Cooley says for the court, in Beecher v. Bush, 45 Mich. 188, 40 Am. Rep. 465, “ That in so far as the notion ever took hold of the judicial mind that the question of partnership or no partnership was to be settled by arbitrary tests, it was erroneous and mischievous,
and the proper corrective has been applied. Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of a partnership are to be found." The same view is announced in the recent English case of Mollwo v. Court of Wards, L. R. 4 P. C. App. Cas. 419. And in section 49 of his work on Partnership, Judge Story says: “In short, the true rule, ex aequo 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 third persons, even if the agreement were unknown 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 deceit upon third persons."
Where the agreement under which a business arrangement is carried on, and which is claimed to be a partnership, is in writing and free from ambiguity or doubt, its legal effect must be determined as a matter of law, and the intention of the parties gathered therefrom. 649 We quote the language of Judge Cooley in the case referred to as expressive of the correct rule: “ It is nevertheless possible for parties to intend no partnership and yet form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners. The law must declare what is the legal import of their agreements, and names go for nothing when the substance of the arrangement shows them to be inapplicable. But every doubtful case must be solved in favor of their intent; otherwise we should 'carry the doctrine of constructive partnership so far as to render it a trap to the unwary.'” The last expression is quoted by him from Chancellor Kent in Post v. Kimberly, 9 Johns. 470. The test of partnership, then, is to be found in the intent of the parties themselves as shown by the contract which they make. Where parties enter into a trade arrangement upon such a basis as that they have a community of interest in the capital stock engaged in the business, and also a community of interest in the profits resulting
Ax. ST. REP., VOL. XLIII.- 15
therefrom, the uniform rule is that they will be held to be partners in such a venture: Dame v. Kempster, 146 Mass. 454. On the other hand, it has always been held that an agent or servant, whose compensation is measured by the profits of a partnership business, is not thereby made a partner. In Holmes v. Old Colony R. R. Corp., 5 Gray, 58, it was held that
5 a railroad corporation by leasing a house owned by it to a party to be run is a hotel, the lessee to pay a certain sum annually, and half the net proceeds arising from keeping the house, and keep an account open for inspection by the corporation, and have free passage over the railroad for himself and all
persons employed, and all articles used in carrying on the hotel, did not thereby become partner in the hotel business. The mere leasing of a hotel for a certain part of the net profits will not make the lessor a partner in the hotel business. This was decided in Beecher v. Bush, 45 Mich. 188, 40 Am. Rep. 465. Nor does the renting of a building for a saloon under an agreement to take half of the profits made out of the business done therein as rent make the renter a partner in the business: Thayer v. Augustine, 55 Mich. 187; 54 Am. Rep. 361. In another case the plaintiff contributed toward the business his manufactory, shops, tools, implements, and machinery, and the land upon which they were situated; the defendants were to furnish a certain sum as capital, and labor to carry on the business. Defendants were to account to the plaintiff at reasonable periods for the proceeds of the business or the profits thereof, and all daily transactions were to be entered on the books, to which plaintiff was to have access, and at stated periods an account was to be taken of the profits, which, after deducting the costs and expenses of running the works and certain expenses, were to be divided between the parties. It was held that there was a community of interest in the capital to carry on the business, and also a community of interest in the profits, and a partnership was thereby created: Wood v. Beath, 23 Wis. 254.
The writings produced in evidence in the case before us must be considered together as one instrument. They were executed on the same day, and it is not questioned that they were intended to express the agreement of the parties on the subject to which they relate. The agreement contains formal parts of a lease, reciting, in substance, that in consideration of the rents, covenants, and agreements therein contained to be paid, kept, and performed on the part of the second 658 party, the first party doth lease and demise for the term of fourteen months the billiard and bar room on Julia street in the Everett Hotel, in the city of Jacksonville, for two hundred and eight dollars and thirty-three cents, in advance, per month, and a further sum equal to one-half of the net profits of the billiard and bar room mentioned. There are clauses. as to the ownership of the bar and bar fixtures, billiardtables and their equipments, and as to the ascertainment of the net profits. The mere form of the agreement cannot alone determine its legal effect, nor is the difference between receiving a sum equal to one-half of the net profits and a sharing in the profits themselves material, if it was in fact intended by the instrument that Webster should have onehalf of the net profits of the bar business. If the agreement amounts to nothing more than a lease from Webster to Rig. ney of the Everett billiard and bar room for two hundred and eight dollars and thirty-three cents per month, and a further suin equal to one-half of the net profits resulting from the bar and billiard business conducted in the room, it is clear from the authorities that a partnership would not thereby be created. The fact that deductions are to be made from the net profits to an amount equal to the sum to be paid as rent would make no difference. The other clauses in the agreement referred to, and which we are not at liberty to disregard, indicate, in our judgment, that something more than a mere lease of the bar and billiard room was contemplated by the parties in reference to the business carried on in the room. The“ bar and bar fixtures and billiard-tables and their equipments” were to be paid for and owned equally by both parties. If the terms “bar and bar fixtures and billiard-tables and their equipments" cannot be held to embrace the entire stock, including the liquors and wines, engaged in the business, they do include a portion of the capital stock 652 employed. The net profits arising from the billiard-tables are to be considered under the agreement in ascertaining the additional sum to be paid to Webster, and bar fixtures are customary equipments for the conduct of a saloon business. Webster, as is clearly shown by the agreement, was to be half owner in such equipments as well as the billiard-tables, and it has been uniformly held that where parties have a community of interest in the capital employed, and also * community of interest in the profits, they are partners as
to third parties. The proof shows that Webster in person bought the billiard-tables for the bar business conducted by E. Rigney & Co., at the same time stating to the seller that he was a partner in the business. But in addition to the clause that Webster was to be an equal owner of the “ bar and bar fixtures and billiard-tables and their equipments," other provisions indicate, it seems to us, a joint interest by Webster and Rigney in the bar business. There were to be no net profits until Rigney received as compensation for his services, and for the use of money advanced by him to pay for the bar and bar fixtures and to carry on the business, a sum equal to the rent paid to Webster. This means the fixed sum of two hundred and eight dollars and thirty-three cents per month which Webster was to receive. This implies that Rigney was to receive out of the net profits compensation for his services and for the use of money advanced by him to pay for the bar and bar fixtures and to carry on the business a sum equal to the sum to be paid to Webster as rent. The bar and bar fixtures, billiard-tables and their equipments were beyond question the joint property of both parties, and an agreement that Rigney was to be remunerated out of the net profits to the extent of two hundred and eight dollars and thirty-three cents per month for money advanced by him to pay 653 for the bar and bar fixtures and to carry on the business, implies that he has expended more than his share in paying for the bar, and bar fixtures, and to carry on the business. The terms “money advanced by him to pay for the bar and bar fixtures and to carry on the business' naturally imply that such was the case. The fact that compensation for Rigney's services was also provided for out of the net profits arising from property in which Webster un. questionably had a joint interest tends to strengthen the view that both parties were interested in the bar business as joint owners.
While the rule is clear that a written contract free from ambiguity cannot be varied by parol testimony, yet, if the language employed leaves the true meaning in doubt, the construction put upon the contract by the parties thereto may be looked to in determining its legal effect. The weight of the testimony in the present case is to the effect that both Webster and Rigney considered themselves as partners under the instrument in question.
In our judgment the written agreement discloses a part