TEEM, 1852.]

Scull et al. vs. Edwards, surv.

There was no evidence except the note, the execution of which is admitted; and as the construction of a written instrument is the province of the court, there was no error as to the instructions.

Mr. Justice SCOTT delivered the opinion of the Court.

Where one makes a promissory note payable to his own order, and then endorses and delivers it to another, he has, in legal effect, but made an ordinary promissory note, at last by all this circumlocution; because, until endorsed, the instrument is imperfect, and has no validity as a promissory note. The first endorsee, then, does not take a derivative but a primitive title, and therefore the endorsement, as to him, in that case, is not technically such, but a part of the instrument itself, thus made valid. (Lee & Langdon v. Br. Bk. Mobile, 8 Porter R. 124, and Roach v. Ostler, 1 Man. & Ryland R., there cited.) It would be otherwise in a case where a firm made a promissory note to one of its members who endorsed it: and in such case the endorsee would take a derivative title, as to all the other members at least, although, even in that case, the note could not be sued on at law before the endorsement. (Smith et al. v. Lurhee et al., 5 Cow. R. 688, 708.)

The grant of oyer in the case at bar, both of the body of the instrument and of the endorsement thereon to the plaintiff below, was therefore strictly responsive to the prayer of oyer for "the writing sued," and placed the latter upon the record in the same sense that it did the former, the two together, in legal effect, constituting the writing itself, on which the plaintiff below sought the recovery in his primitive title set out in the declaration. And, when afterwards, at the final trial, it appears, as the bill of exceptions shows, that the plaintiff read "in evidence the following instrument of writing, it being the same given on oyer, and which is in the following words and figures, to wit:" &c, (setting out, in hæc verba, not only the body of the note, but the full endorsement thereon,) we cannot intend, in the face of such a record, that the endorsement was in fact not read

in evidence, but must conclude, as is manifestly true, that it was read in evidence. And when we do so, it is not only clear that the verdict and judgment are fully sustained by the evidence, but that there was no error in the refusal of the court below to give the first two instructions asked; because, there being evidence in, or want of evidence upon which to found any pretext for variance between the allegations and the proof, they were purely abstract: there being no more necessity to prove a distinct date for the assignment in this case, than there would be to prove two dates to any one ordinary promissory note alleged to have been executed on one certain day only. Nor was there any error in the refusal to give the third, because, in its terms, it was not, in strictness, law, and was calculated to mislead the jury. Nor was there any error in the instruction given.

All three of the grounds, then, upon which the motion for a new trial was made, being wholly unsustained by the record, and in no other wise supported than upon very technical and flimsy grounds, in a matter of plain indebtedness, where no defence at all was offered on the merits, we shall not only affirm the judgment of the court below with costs, but award the appellee five per centum damages on its amount.

ALLEN VS. DAVIS.

Where two persons agree to join their forces, and cultivate a corn crop, and divide the product, it is a partnership, and the product, until divided, is the joint property, and in the joint possession of the two contracting parties, and one of them cannot bring an action against the other therefor.

Where two are making a corn crop in partnership, one employs the other to finish the crop, empowers him to sell his interest in it, pay himself out of the proceeds

for his labor in completing the crop, and also a debt due him from the other, this is a power coupled with an interest, and cannot be revoked.

In such case, the party empowered to sell the corn, is the agent of the other, and cannot be sued for the balance of proceeds of the corn until after demanded and refusal to pay over.

Appeal from Independence Circuit Court.

On the 10th May, 1847, George W. Davis sued Aaron Allen, before a Justice of the Peace of Independence county, on an account for "350 bushels of corn, $100 00."

Allen filed an off-set against Davis as follows:

"1846-For one horse sold you,

Taking care of corn crop

after you left, and gath

ering the same,

$50 00

$50 00-$100 00."

Judgment before the Justice for Davis, and Allen appealed to the Circuit Court, where the case was tried by a jury, and verdict in favor of Davis for $54 80.

Allen moved for a new trial, on the grounds that the verdict of the jury was contrary to law, the instructions of the Court and the evidence-that the evidence showed that Davis and Allen were partners in the crop, and that no settlement was ever made between them, or balance struck-that the evidence proved Allen to be lawfully and properly in possession of the corn, that there was no proof that the corn was ever sold by him, but that the whole matter still remained unsettled at the time the suit was commenced, and that there was no proof of demand by Davis on Allen for the corn before suit.

The Court overruled the motion, Allen excepted, and set out the evidence, &c.

The substance of the evidence is stated in the opinion of this

court.

At the instance of Allen, the court instructed the jury, "that if the jury find from the evidence, that Allen had charge of the corn in question, as the agent of Davis, and disposed of said

corn under such agency, in such case, Davis cannot sustain an action for the proceeds of said corn, until demand made."

The Court instructed the jury, at the instance of Davis-"that although Davis constituted Allen his agent in the premises, yet, Davis had a right to revoke such agency at any time."

Allen appealed to this court.

BYERS & PATTERSON, for the appellant. There was no evidence of the revocation of the agency of Allen, or sale of the corn, or demand by Davis. (3 Ark. 75. 5 ib. 93. 1 Eng. 38, 385.) Nor would an action lay even after demand, as Allen has a lien on Davis' part of the crop, and the power to sell the same was coupled with an interest. Story on Agency 608. As the parties were partners, no action at law would lie, until account stated and balance struck. Story on Part., secs. 15, 16, 17, 18, 219, and notes.

FAIRCHILD, contra, contended that the verdict of the jury was not contrary to evidence, and as upon the whole facts of the case the verdict was right, this court would not interfere with the discretion of the court below in refusing a new trial: that Allen was not the agent of Davis, and no demand was necessary, and upon the conversion, Davis had a cause of action, (3 Barb. Rep. 66. 14 John. Rep, 169. 16 John. 225. 9 B. Mon.,) that the authority of Allen to dispose of the corn terminated on the return of Davis, (Story on Bail. sec. 366, 208:) that no partnership existed between the parties. 5 Ark. 65. 4 ib. 425. 7 B. Mon. 398. Heran v. Hall, 1 B. Mon. 159 Post v. Kimberly, 9 J. R. 470. 2 J. Cas. 331. 20 J. R. 635.

Mr. Chief Justice JOHNSON delivered the opinion of the Court. There can be no question but that the parties to this suit originally entered into a contract of partnership in the cultivation of the corn crop in 1846. The terms of the contract were that the appellant (Allen) was to furnish the land, three horses, and as many hands, and that the appellee (Davis) was to furnish one horse and one hand for the purpose of cultivating the crop, and

when it should be gathered, Davis was to have, for his share, one-fifth, and Allen the residue. This contract was afterwards changed, and it was then agreed between them that Allen should put in two horses and as many hands, and that Davis should put in one horse and one hand, and that the latter, instead of one• fifth, should receive one-fourth of the crop, and that the former should be entitled to the residue.

A partnership, as between the parties themselves, is a voluntary contract between two or more persons, for joining together their money, goods, labor and skill, or any or all of them, under an understanding that there shall be a communion of profit between them, and for the purpose of carrying on a legal trade, business or calling. See Collyer on Partnership, at page 2, and the notes at the bottom of the same page. Here, the parties, under an express agreement, joined together their horses, hands and labor, for the purpose of carrying on the business of cropping for the year 1846, and according to the contract they were to receive certain proportions of the proceeds, when matured and gathered. The effect of this contract, therefore, being to create a joint interest, and also a joint possession, and it not appearing what particular quantity each should receive, but left solely to depend upon the result of their joint labors, it is clear that, whilst this state of things continued, no action at law could be maintained by the one against the other. It is in proof, however, that the appellee, before the crop was finished, determined to leave the place, that he did so, with the consent of the appellant, but that before he left he made an agreement with the appellant, that he should finish the crop and gather it, and then send it to New Orleans, and sell it, or sell it at home, as he should think best, and to pay himself fifty dollars out of his share, it being the price of a horse which he had purchased of him, and also to pay himself for his extra trouble in completing the cultivation, gathering and selling the crop, and it was further agreed that, in case there should be any thing remaining of the appellee's share, after paying for the horse and the extra expenses occasioned by his absence in finishing, gathering and sell