deed, her reacknowledgment alone is sufficient: Newell v. Anderson, supra. In the case of Conklin v. Bush, 8 Pa. St. 517, it was decided that a deed of a feme covert defectively acknowledged by her may be ratified by her after the disability of coverture is removed, and that this ratification may be implied from long acquiescence. But in Price v. Hart, 29 Mo. 171, and in Smith v. Shackleford, 9 Dana, 452, it was held that such ratification could not be made by parol merely.

ACTS PASSED FOR THE PURPOSE OF CURING DEFECTS IN ACKNOWLEDGMENTS of deeds of married women are constitutional, although they extend to deeds acknowledged previous to their passage. This subject is discussed at length in the note to Barnet v. Barnet, 16 Am. Dec. 518; see also Raverty v. Fridge, 3 McLean, 230; Doe ex dem. Moore v. Nelson, Id. 383. In those states in which a married woman is by statute permitted to convey her separate property in the same manner as if she were unmarried, the certificate of acknowledgment is, of course, no longer regarded as an essential part of her conveyance: Hawes v. Mann, 8 Biss. 21; Terry v. Eureka College, 70 Ill. 236; Wedel v. Herman, 59 Cal. 507.

THE PRINCIPAL CASE IS CITED in Woods v. Polhemus, 8 Ind. 65, to the point that the acknowledgment is the chief essential element to give efficacy to the deed of a feme covert, and that solemnity must be in substantial compliance with the statute.

CASES

IN THE

SUPREME COURT

OF

IOWA.

PRICE & Co. v. ALEXANDER & Co.

[2 G. GREENE, 427.]

ONE CONTRACTING FOR SHARE OF PROFITS IN BUSINESS IS PARTNER as te third persons, but is not necessarily such as between him and the party with whom he so contracts.

ELEMENTS ESSENTIAL TO PARTNERSHIP AS between the PaRTIES.-To constitute a partnership between the parties, there must be a joint ownership of the funds and an agreement to participate in the profits or losses of the business.

WHETHER PARTNERSHIP EXISTS inter se, depends on the intention of the parties.

PARTNER MAY BIND COPARTNER BY INSTRUMENT UNDER SEAL, if the latter assents to the instrument before its execution, or ratifies it by parol or otherwise, after.

PARTNER MAY BIND HIS COPARTNER BY DEED, if the deed conveys only such property as could be conveyed without the deed.

UNNECESSARY ADDITION OF SEAL TO INSTRUMENT does not vitiate it.

SPECIAL INSTRUCTIONS INCLUDED IN MORE GENERAL ONES already given may be refused.

ERROR to the Lee district court. The opinion states the facts. J. C. Hall, for the plaintiffs in error.

W. J. Cochran and C. E. Stone, for the defendants.

By Court, GREENE, J. A. Alexander & Co. commenced this suit before a justice of the peace, and obtained a judgment against Joseph Price & Co. The case was taken to the district court by appeal, where Alexander & Co. again obtained a verdict and judgment for seventy-five dollars, the amount rendered before the justice.

In the court below, the plaintiffs offered certain articles of

agreement made under seal by the respective firms of " A. Alexander & Co." and "Joseph Price & Co.," on the twenty-second of March, 1848. The agreement stipulated that Alexander & Co. should appropriate such portion of their wharf and warehouse in the city of Keokuk, as might be necessary to carry ou the storage and forwarding business during the navigable season of 1848, and permit said Price & Co. to keep their wharf-boas in front of said wharf, to be used by them in the storage and forwarding business, during the same period. The respectivo firms, as parties to the agreement, were required to keep books and enter therein the daily transactions of their respective operations in said business. They also agreed to conduct the "business at their respective places aforesaid, upon their ow capital and at their own expense, and each to bear and sustain any and all losses that might accrue to them respectively in said business." It was also stipulated, in the language of the agreoment, that they should "pay over to each other, mutually, after the date of this instrument, one half of the clear net profits realized by said parties from the storage business respectively. It is understood, however, that any and all moneys received by said Price & Co. from storage during the time they may be at another landing, during high water, shall be used and disposed of by the said Price & Co. exclusively." It was then agreed that if either party should fail to pay the money as specified, the other party might, at his option, terminate the contract. Price & Co. agreed not to sell certain articles at wholesale, and also to pay Alexander & Co. twenty-five dollars, as a bonus for all the business they might transact by the storage of emigrants' furniture, etc. To the admission of this agreement in evidence, the defendants interposed two objections: 1. Because the contract could not be effectual, as one partner could not bind another under seal, and as the agreement constituted a partnership wherein one partner could not sue another; and, 2. Because the agreement was not signed by the individual parties to this suit, but by the respective firms, and therefore as one member of a firm can not bind his copartner under seal, the partners not signing the agreement were not bound. But the court overruling the objections, admitted the agreement in evidence. It is now contended that this ruling of the court was erroneous; and this involves two questions for adjudication: 1. The character of the contract; and, 2. The liabilities of the parties.

1. As a general rule, a partnership creates a community

interest, of duty, and of responsibility among the members of the firm. Such an association, when not qualified or limited in its character, makes each member a participant in the profits and a contributor to the losses resulting from the operations of the partnership. The authorities are uniform upon this point. But the books show a manifest distinction in partnerships, as existing between the parties themselves and as existing between them and others. There may be a connection in business between A. and B., in which they would be legally adjudged partners, in relation to others, but not so as between themselves: Gill v. Kuhn, 6 Serg. & R. 333; Post v. Kimberly, 9 Johns. 489; Montgomery v. Ivers, 17 Id. 40; Bailey v. Clark, 6 Pick. 372; Kellogg v. Griswold, 12 Vt. 291; Gow. on Part. 11.

Ordinarily where a person contracts for a share of the profits, as such in any business enterprise, he has been considered a partner as to third persons, even if stipulated in the contract that he should not be liable. This general rule is predicated upon principles of public policy in relation to commercial transactions, and upon the proposition, sanctioned by natural justice, that he who shares in the profits ought also to contribute to the losses of the business, by paying creditors for furnishing means out of which those profits might have been realized. To this rule, however, there are many nice qualifications and exceptions, chiefly pertaining to profits acquired, not in the capacity of a partner, but in the character of an agent or otherwise, as compensation for labor or benefits furnished, not as a specific interest in the business, but under the stipulation that he should be rewarded by a given sum, in proportion to the quantum of profits, without being clothed with the rights, powers, and duties of a partner. But if the arrangement secures to the party a specific interest in the profits themselves as profits, in contradistinction to a stipulated portion of them as compensation, he incurs the liabilities of a partner. In Loomis v. Marshall, 12 Conn. 69 [30 Am. Dec. 596], A. entered into an agreement with B. to furnish a full supply of wool for his factory for two years; B. was to manufacture the wool into cloths, and A. have fifty-five per cent. of the net proceeds, and B. forty-five per cent., they contributing in the like proportions for warp, insurance, etc.; in an action by C. against A. and B. as partners, for work in the factory, it was held that they were not liable as partners. In Ambler v. Bradley, 6 Vt. 119, it was held that where A. owned a mill and agreed with B. to work it for half the gross earnings, they were not partners.

It was held in Rice v. Austin, 17 Mass. 197, that an agreement between two persons to share in the profits of an adventure or concern, does not necessarily constitute them copartners in that respect. See also, upon this point, Baxter v. Rodman, 3 Pick. 435; Cutler v. Winsor, 6 Id. 335 [17 Am. Dec. 385]; Gallop v. Newman, 7 Id. 282; Denny v. Cabot, 6 Met. 82. Bowman v. Bailey, 10 Vt. 170, was a case where one party furnished a boat, and the other sailed it, with an agreement to divide the gross profits, and it was held that this did not constitute a partnership. See also Dunham v. Rogers, 1 Pa. St. 255; Burckle v. Eckart, 1 Denio, 337; Clement v. Hadlock, 13 N. H. 185; Bradley v. White, 10 Met. 303 [43 Am. Dec. 435]; Johnson v. Miller, 16 Ohio, 431; Story on Part., sec. 34-36.

Under the guidance of these authorities and those cited by counsel for the defendants in error, the character of the agreement in the present case can not well be mistaken. In that instrument, the leading ingredients of a partnership are wanting. It was the manifest intention of the parties, that the relation of partners should not subsist between them. It is expressly stipulated, that the business of each party should be conducted by themselves, upon their own capital, at their own expense, and subject to their own losses. Price & Co., for the privilege of having their wharf-boat at the wharf of Alexander & Co., and for half the receipts of their storage business, stipulate to pay them a sum equal to one half of their net receipts from the storage and forwarding business, and also a bonus of twenty-five dollars, for all business they might transact by the storage of emigrants' furniture, etc. Under the analogies of the foregoing cases, it may be well doubted, whether this agreement would constitute a partnership as to third parties; but ob viously, as between themselves, inter se, the relation of copartners never was contemplated. The one party had no right, control, or management over the business of the other, nor incurred either loss or liability. In order to constitute a partnership inter se, there must be a sharing in losses as well as in profits.

In Vanderburgh v. Hull, 20 Wend. 70, such were considered the indispensable requisites to any partnership; and in Lawry v. Brooks, 2 McCord, 421, where there was no mutual interest in the capital invested, and no stipulation for mutual loss, it was not considered a copartnership. Chancellor Walworth, in Chase v. Barrett, 4 Paige, 160, decided, "that to constitute a partnership as between the parties themselves, there must be a joint

AM. DEO. VOL. LII-34