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Eastman v. Clark.

were severally the owners of the horses which drew the coach through their respective districts, and of the harness; and severally provided their stabling, food and horse-keepers in those districts. The defendants, Hanson and Tibbs, were the proprietors of the horses which drew the coach in the Lamberhurst quarter.

None of the other partners had any property in these horses, or contributed to furnish them with corn or hay. The goods in question were delivered for the use of these horses” at a stable owned

by the plaintiff and occupied by Hanson. "The profits arising from the coach were divided among the defendants in proportion to the number of miles which they respectively drew it. BEST, Serjt., for the defendants, contended, on the authorities of Saville v. Robertson, 4 T. R. 720, and Coope v. Eyre, 1 H. Bl. 37, that the defendants were not all jointly liable, and that the plaintiff, therefore, must be nonsuited; but the judge (MACDONALD, C. B.) left it to the jury to decide whether the plaintiff gave credit to Hanson and Tibbs only, or to the whole concern, for that the particular arrangement made between the partners might not be notorious to all the world; and since all the parties proportionably shared the general profits of the business, all might be liable to pay for the goods furnished for the purpose of producing that profit; and it was more probable that the plaintiff should be willing to give credit to the whole concern than to a particular individual." The jury found a verdict for the plaintiff. On the defendants' motion for a new trial, the plaintiff argued that this mode of subdividing the work of a coach on a long road was very common ; that the entire partnership, which has the benefit of goods bought under such circumstances, upon every adjustment of the partnership account, pays for them as part of their general outgoings. And this he suggested was the mode of conducting the business between the partners. But the Court of Common Pleas, MANSFIEld, HEATH (who delivered an opinion in Coope v. Eyre, and in Benjamin v. Porteus, and concurred with EYRE in Waugh v. Carver), LAWRENCE and CHAMBRE, "without hearing BEST, were clear that the evidence, as stated, left no ground for this supposition," and set aside the verdict.

This case, as reported, is a strong authority against a sharingprofit test. The remark of the chief baron, at the trial, that, as all the defendants shared the general profits, "all might be liable to pay for the goods furnished for the purpose of producing that

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Eastman v. Clark.

profit," in view of the authorities already examined, seems to present the idea that all the defendants were liable if they shared the profits of the entire stage line, from Hastings to London, as joint principals; otherwise not. The case seems distinctly to show that, in 1809, Waugh v. Carver was not understood by the eminent counsel, nor by the judges, who might be supposed to understand the reported decisions of their own court, to establish a sharingprofit test. At the trial of Waland v. Elkins, 1 Stark. 272, before GIBBS, C. J., in 1816, "BEST, Serjt., referred to the case of Barton v. Hansor, 2 Taunt. 49, in which it had been held that for corn supplied for the use of the horses of a stage-coach belonging to several proprietors, but horsed severally for specific stages, that proprietor alone was liable who supplied the horses by which the corn had been used." But GIBBS, C. J., said; "I recollect the case very well, but the decision there turned upon the inferior contract (if I may so term it) between the parties. In that case there was a particular contract between the parties, and it was known in what situation they stood with respect to each other. Such contracts are binding upon the parties, but they make no difference in their relation to the public." From what is said in another report of Waland v. Elkins, Holt's N. P. 227, it seems that GIBBS held the defendant to be a partner with one Dyson inter sese; and perhaps he understood the defendants in Barton v. Hanson were partners inter sese, and therefore partners quoad alios, except so far as others were aware of their agreement that each should feed his own horses at his own expense. In the statement of the facts and the charge of the judge, in Barton v. Hanson, the defendants are spoken of as "partners," as if, in some sense or other, definite or indefinite, they were understood to be partners; but the report does not show that it was an admitted or proved fact that the plaintiff knew that the defendants severally fed their own horses, not at their joint expense. It was held, there was no evidence of their feeding them at their joint expense. At the trial the judge observed that the particular arrangement (meaning apparently the arrangement for severally and not jointly feeding the horses) made between the partners might not be notorious to all the world; " and for that reason he "left it to the jury to decide whether the plaintiff gave credit to Hanson and Tibbs only, or to the whole concern," giving the jury his opinion that it was more probable that the plaintiff gave credit "to the whole concern," than to Hanson and Tibbs

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Eastman v. Clark.

only; from which it may be inferred the plaintiff knew there was a "whole concern of which Hanson and Tibbs were a part; and if the plaintiff, being aware of that fact, elected to sell to Hansor and Tibbs on their credit solely, he might not have a right of action against those whose credit he rejected; but if the defendants conducted their business in such a manner as to inform the plaintiff of their partnership, and to cause him to sell hay and corn to two of them on the credit of all, they would be estopped to set up against him their private agreement to feed their horses severally, not at the joint expense.

In other cases, Barton v. Hanson has been understood to be an authority against a sharing-profit test. In Wilson v. Whitehead, 10 M. & W. 503 (1842), PARKE, B., spoke of "the ordinary case of coach proprietors, where each horses the coach for one or more stages, and each agrees to bring into the concern the work and labor of his horses, and none of the others has any interest in them, though all share in the profits." Upon counsel suggesting that "those cases proceed on the ground that it is notorious to all that each does so work with his own horses," PARKE replied: "Not at all; but on the ground that such is the authority given,” that is, on the ground that the proprietors do not authorize each other as agents to buy for all as joint principals or partners. In Kilshaw v. Jukes, 3 B. & S. 847, 871, 872 (1863), WIGHTMAN, J., in a written opinion, questioning the decision in Wilson v. Whitehead, spoke "of stage-coach proprietors, where each horses the coach with his own horses for one or more stages, in which case the proprietors of the coach are not jointly liable for provender supplied to the horses of each, as decided in Barton v. Hanson, 2 Taunt. 49," without expressing any doubt of the soundness of the decision or the accuracy of the report of the latter case.

In Gouthwaite v. Duckworth and ano., 12 East, 421 (1810), Duckworth was held to be a partner with the other two defendants, and liable to the plaintiff for goods sold on the ground that he was to share profit and loss of a joint adventure, and the goods were bought of the plaintiff for all the defendants as joint principals in the adventure.

In Ex parte Hamper, 17 Ves. 403, 404 (1811) (a case which suggests that in bankruptcy and equity practice, where law and fact are often mingled, and decided by the court without a jury, the distinction between law and fact is apt to be obscured or obliterated), Lord

Eastman v. Clark.

ELDON said: "The cases have gone farther to this nicety upon a distinction so thin that I cannot state it as established, upon due consideration, that if a trader agrees to pay another person for his labor in the concern a sum of money, even in proportion to the profits, equal to a certain share, that will not make him a partner; bu if he has a specific interest in the profits themselves, as profits, he is a partner." And two days afterward, in the same case (p. 412), he said: "The ground as to third persons is this: It is clearly settled, though I regret it, that if a man stipulates that, as the reward of his labor, he shall have, not a specific interest in the business, but a given sum of money, even in proportion to a given quantum of the profits, that will not make him a partner; but if he agrees for a part of the profits, as such, giving him a right to an account, though having no property in the capital, he is, as to third persons, a partner; and, in a question with third persons, no stipulation can protect him from loss." In Ex parte Rowlandson, 1 Rose, 89 (1811), the same judge said it was settled "that if a man, as a reward for his labor, chooses to stipulate for an interest in the profits of a business, instead of a certain sum proportioned to those profite, he is as to third persous a partner." In other subsequent cases (Ex parte Langdale, 18 Ves. 300, 301; Ex parte Watson, 19 Ves. 459, 461; Ex parte Gellar, 1 Rose, 297; Ex parte Wilson in the matter of Colbeck, 1 Buck. 48, 52), ELDON is reported to have dropped remarks which, without the explanation of his meaning given in Ex parte Hamper, might be supposed to indicate that he regarded an unqualified sharing-profit test as settled law. The distinction which, in Ex parte Hamper, he recognized as settled, and by which his language in subsequent cases is to be interpreted, is the distinction between a person entitled to a sum equal to a share or fractional part of the profits ("casual, indefinite and depending on the accidents of trade," as described by BLACKSTONE; "generally and indefinitely," according to EYRE) "as the reward of his labor," who, on the one hand, is not a partner, and a person who "has a specific interest in the profits themselves, as profits," "profits, as such, giving him a right to an account," who, on the other hand, is a partner.

ELDON's description of the person who is not a partner is a plain description of a creditor. "As a reward of his labor" is an illustration thrown in to apply the description to one class of creditors

an example. His description of the person who, he says, "is a

Eastman v. Clark.

partner," is a description of a partner. His "specific interest in the profits" is the same as DE GREY'S "specific lien upon the profits." "Profits themselves, as profits," of course are meant to be contrasted with profits, not as profits, but as something else What else can they be (when somebody is entitled to them not as profits) but profits as a reward of labor, as compensation for any thing as the payment of a debt, as the satisfaction of the claim of a creditor, as the performance of a contract not of the partnership class, or as damages recoverable in an action of law? The case of an heir or legatee, entitled to a share of profits, does not impair the distinction between a partner's right to profits as his profits, and a creditor's right to his debtor's profits as payment of a debt. "Profits as profits," and "profits not as profits," are expressions fully justified by the analogies of the law. The question may arise whether provisions furnished to a pauper by an overseer of the poor were furnished by the overseer as overseer, or as a private individual. It may be disputed whether some one used a highway as a highway, or as a pasture, lumberyard, or play-ground. "It is the duty of towns to keep their highways in suitable repair only for the travel passing thereon, and it is only to the traveler, as such, that the duty can be said to be owing." The statute gives "the traveler, as such," "a remedy only for such injuries as may happen in the use of the highway, as such." Ball v. Winchester, 32 N. H. 435, 444. A person who is a common carrier may also be a warehouseman or depositary; and to speak of a common carrier having goods in his possession, under some circumstances, as a common carrier, and being liable as such, and under other circumstances, having the same goods in his possession as a depositary and be liable as such, is to use ordinary language. In Lord ELDON'S mind, the distinction which he accepted as established by authority was involved in some degree of vagueness and obscurity that prevented his appreciating its full force; for he characterized it as "thin," which he would not have done had be clearly seen that it was the distinction between a creditor and a partner. He seems not to have fully realized its breadth; but he recognized it as "settled " by decided cases. If he referred to reported cases, we know what they are; if he referred to unreported ones, they corroborate those that are reported.

It was natural for a chancellor to refer to a bill in equity for an accourt of profits as one of the rights of a partner. But as such

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