inter se.

Burckle v. Eckhart.

him have the share of the profits, if any, in making the second ten miles of the Chenango turnpike road, in proportion to the help he afforded in completing the same, the one half to be taken from the part of each defendant," there was no partnership But the court based their decision on Hasketh v. Blanchard, (4 East, 144,) and other cases, which clearly decide that they would be holden as partners, quoad third persons. In Dob v. Halsey, (16 John. 34,) it was held that where one Moore agreed to superintend the saw-pits and lumber yard of the plaintiffs for one year, in consideration of his receiving onethird of the net profits, he was a partner, not only as to third persons, but also inter se. The case of Champion v. Bostwick, (18 Wend. 175,) is a direct authority in favor of the principle, that where one is paid for his services by a share of the profits, according to the English rule, he is a partner as to third persons. In Cushman et al. v. Bailey and Conkling, (1 Hill, 526,) it was decided that where C. loaned to B. $1000 for a year, and leased him a store for the same period, and stipulated that his son should attend the store as B.'s clerk without specific compensation; in consideration of which B. agreed to invest $3000 in the store, conduct it during the year, and at the expiration thereof repay the $1000 and surrender the premises, if required, accounting for the business done, and render to C. one equal third of all the profits, &c. the agreement constituted a partnership as to third persons. Here too the English rule is fully recognized.

The case of Vanderburgh v. Hull and Bowne, (20 Wend. 70,) is one where one Sherwood was called by Hull and Bowne, the plaintiffs, to prove their demand against the defendant, and on his voir dire disclosed that he was employed as the agent of the plaintiffs, in a foundry conducted by them, at an annual salary of $300, and in addition to that, one-third of the profits of the foundry, if any were made, but had nothing to do with the losses. The plaintiffs found the capital, stock, &c. and he gave his services. The defendant objected to the witness on the ground of interest, and also that he should have been joined as co-plaintiff. Mutual releases were then executed between the plaintiffs and witness, and he was allowed to testify. The

Burckle v. Eckhart.

supreme court, on a bill of exceptions, decided that Sherwood was not a partner, because he was not liable for losses-because the share of profits was intended as payment for the labor of the witness; and the cases in 5 Taunt. 74, 2 H. Black. 590, and 1 Camp. 331, were cited as in point. In the first case cited by Justice Nelson, it was conceded by both counsel and court, that the parties in that case were partners in the profits, though not in the goods, and of course would be liable to third persons. So in the other cases, a distinction is taken between being partners in the goods and partners in the profits. In the first case they are partners inter se; in the latter not, except as to third persons.

I concede that the case of Vanderburgh v. Hull and Bowne was rightly decided, for the reason that the witness was not a partner of the plaintiffs, as between themselves—a proposition which the defendant should establish, before he could make the objection of non-joinder available; because he was not suing as a creditor of the firm, and was not, therefore, in a position to raise the question. Only those who are partners inter se are bound to join in a suit, as plaintiffs, to recover a debt due them. (Teed v. Elworthy, 14 East, 209; Atkinson v. Laing, 1 D. § E. 16.) And in this respect I cannot but think the supreme court erred in deciding the case of Dob v. Halsey. In that case Moore had no joint interest in the timber sued for, nor was he responsible for losses, as between himself and the plaintiffs. He was a partner in the profits only, but inter se, they were not partners within the English rule.

It was not the intention of the court in Vanderburgh v. Hull and Bowne, to establish a new rule, as to what facts constitute a partnership between partners and third persons, nor to innovate upon the old one; nor did the facts of that case, and the point to be decided, call for the consideration of the question arising on this record. I therefore respectfully dissent from the remark of the learned justice in Burckle v. Eckhart, (1 Denio, 342,) that " so far as that court was concerned, it had been settled that a mere agent or servant who is to obey orders, and has no interest in the capital stock, will not be a partner, even as to

Burckle v. Eckhart.

third persons, merely because he is to be compensated for his services by receiving a share of the profits which may arise from the business in which he is employed." That court decided directly the other way in Dob v. Halsey, (16 John. 34; Cushman v. Bailey, (1 Hill, 526;) Bostwick v. Champion, (11 Wend. 580; S. C. in court of errors, 18 id. 184, 5, opinion of Walworth, Ch.) In this last case Mr. Justice Nelson admits that the proprietors of the stage line were not partners, inter se, but holds them so as to third persons, because they shared in the profits.

The private arrangement existing between Gibbs and the other members of his firm was unknown, and immaterial to the plaintiff at the time the contract was made. If Gibbs conceived the services which Eckhart contributed to the common stock equal to money, he had the right to do so. The law so esteems it; and if Eckhart was to act a subordinate part to the head of the firm, in the management of the joint interest, it does not in the least affect the question. Two things are certain, he was actively engaged in purchasing and forwarding western produce, (including the very purchase on which this suit is founded,) and was entitled to one-fourth of the profits coming from that business. There is not a case in the books, either English or in this state, which hold such a case not a partnership, as between the vendor of property and persons thus purchasing. In addition to the above facts Gibbs declares to the plaintiff, at the time of the purchase, "that Eckhart had a share in the business," and Eckhart replied "that it was so." This remark must have been understood by the plaintiff to mean that Eckhart had a share in the business then transacting, or why such a remark at that time? If an authority is needed to show that a declaration made at such a time, should be taken secundum subjectam materiam, it will be found in the judgment of Lord Kenyon, in De Berkom v. Smith, (1 Esp. N. P. C. 29.)

For the above reasons the judgment should be reversed and a new trial directed.

Judgment affirmed.

Smith v. Kerr.

SMITH and others vs. KERR and others.

In an action upon a sealed instrument in a justice's court, it is not necessary to show in the declaration that the instrument was sealed by the parties. It is enough to declare generally for breach of contract, referring to the contract in such terms as to identify it, or setting it forth according to its legal effect without stating it to be under seal. Per JEWETT, C. J.

A declaration in writing in a justice's court without naming the form of action, set forth that the defendants leased certain premises of the plaintiffs, and went on to state a cause of action for a breach of one of the engagements in the lease. Annexed to the declaration was a paper purporting to be a copy of the lease, together with a notice addressed to the defendants stating that it was a copy of the lease referred to. The instrument purported to be signed by the parties, but there were no marks indicating that the original had been sealed, nor was it averred in the declaration that it was sealed. Held, nevertheless, that the plaintiffs might upon the trial give in evidence and recover upon the lease, although it was a sealed instrument.

A party may sue upon a covenant running to himself although he did not sign and seal the instrument.

A sealed contract relating to partnership business executed by one of several partners for the firm, without authority under seal, is binding on all the partners if they assent thereto, and such assent may be given at the time or subsequently.

ISAAC POTTER, Abner Potter, and Elihu S. Smith, sued John Kerr and Charles S. Kimble in a justice's court in the county of Erie. The declaration was in writing, and set forth that on, &c. the defendants leased of the plaintiffs a certain potashery with three potash kettles in the arches, worth thirty-five dollars each, and other articles used in that business; and that the defendants agreed with the plaintiffs, among other things, to return the articles at the expiration of the lease in as good condition as when they received the same, except the usual wear with fair usage; and if said kettles should be broken or injured so as to render them unfit for use, the defendants agreed to pay for them. One of the breaches complained of was the breaking and loss of one of the kettles, which the defendants had not paid for, to the plaintiffs' damage, &c. The form of the action was not mentioned in the declaration. At the foot of the declara

Smith v. Kerr.

tion was a notice addressed to the defendants stating that thereto annexed was a copy of the lease referred to. Then followed a paper purporting to be a copy of a lease executed between the parties which contained substantially the provisions set forth in the declaration. The concluding words were, "signed, sealed, and delivered," &c. The instrument purported to be signed by the parties respectively, plaintiffs and defendants, but there were no marks indicating that the original had been sealed. The defendants pleaded the general issue.

On the trial before the justice, the plaintiffs recovered judgment. The defendants appealed to the common pleas of Erie county, where the cause was again tried and the plaintiffs had a verdict and judgment thereon. The defendants brought error into the supreme court, where the judgment of the common pleas was reversed and a new trial awarded. The plaintiffs then brought error to this court. The questions which arose on the trial are stated in the opinions delivered by the judges.

A. S. Sawin, for plaintiffs in error. I. One partner can consent to the execution of any paper under seal of the kind given in evidence, in his name, by a co-partner, and whether such consent in this case was given or not was fairly submitted to the jury. (1 Hall's R. 262; 3 Kent's Com. 5th ed. 47, 48; 19 John. 513; 9 id. 285; 4 T. R. 313; 4 Met. 548; 5 Hill, 113; 22 Wend. 324; 4 Com. Dig. 158; 87; 21 id. 202; 10 Com. Law R. 109.)

Tait, a. 2; 10 Wend.

II. The defendants having contracted with the plaintiffs by name, whether the plaintiffs executed the contract or not, the defendants were bound by it, and therefore it was unnecessary to prove its execution by the plaintiffs.

III. The objection taken on the trial to the reading of the lease in evidence, was not sufficiently specific to authorize the defendants to raise the point of variance. If the objection was properly taken, still, it is insisted that under the liberal rules which prevail in justice's courts, it was properly disregarded by the justice and the common pleas. (15 Wend. 669; 13 id. 66, 403; 2 Hill, 504; 1 id. 61, 69; 5 Wend. 275; 5 John. 122; VOL. III.

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