
    
      Hiram Bartlett & Co. v. Abram D. Jones. Same v. M. M. Levy. Same v. A. D. Jones & M. M. Levy.
    
    Participation in profits is enough, in most cases, to make a man a partner: but although it makes him a partner in the concern, yet it gives him no title to the capital stock, if his interest be merely in the profits.
    Where one does not become a member of a concern, but is to act as an agent or clerk in effecting sales, and his compensation, for his services, is to be measured by the profits, there is no doubt that in such cases he would, not be a partner.
    
      Before Mr. Justice Evans, at Kershaw, Fall Term, 1847.
    These were three actions of trespass, tried together. In November, 1844, a store was set up in Camden, under the superintendence of one Aaron Burr, for the sale of shoes, boots, hats, and some description of dry goods. The bus iness was carried on in the name of the plaintiffs. The sign over the door was H. Bartlett & Co., and the respective names of the co-partners, Hiram and Franklin Bartlett, were painted at the windows. Burr professed to be only an agent for them. The defendant, Abram D. Jones, had a judgment against Burr, which, with interest and costs, amounted to $1635 44 cents. On the 30th December, 1846, the Sheriff, Levy, levied this Ji. fa. of Jones,, by his direction, on a large amount of the goods in the store, as the property of Burr, and sold them the 1st Monday in February. For this alleged trespass, the first two actions were brought against Jones & Levy, the Sheriff, separately. There being still a balance unsatisfied, a further levy was made, so as to satisfy the execution in full. For the second levy, the third action was brought. The only question was, whether the goods belonged to the plaintiffs, or to Burr.- If to the latter, then the defendants were justified in what they had done. Many witnesses were examined on both sides.
    The presiding Judge was of opinion, that the evidence did not create a partnership with Burr. The amount of his compensation depended on the quantum of business done, but he was not to participate in the losses. This did not make him a partner.
    The question submitted to the jury was, whether the goods levied on,were the plaintiff s’. His honor said there might be some facts unexplained', which created a suspicion, but if they could believe the witness, Burr, he thought .the plaintiffs’ right of property clearly established. The jury found for the plaintiffs, the amount that the Sheriff sold the goods for. The goods were proved to have been of much greater value.
    The day before the trial, a motion was made that the plaintiffs should give' security for the costs. It appeared from the facts stated, that they were insolvent, and had assigned all their estate, including this action, to Olney &■ Johnson. This motion was refused, on the ground, that mere insolvency existing at the commencement of the suit, or supervening afterwards, was no ground to order security for costs.
    
      The only question made in the notice of appeal, which Was considered by the Court, was that of the co-partnership.
    Many questions of fact were also made, but as they were not considered, it is unnecessary to notice them here.
    Smart & Gregg, for the motion.
   O’Neall, J.

delivered the opinion of the Court.

The only question necessary to be considered, is Whether the Judge was rig'ht in holding that Burr was not a co-partner. For all the other supposed errors are in fact merely, and cannot affect the verdict. If the plaintiffs be entitled to their verdict, then the security for costs is wholly unimportant. But according to the case of Cleverly v. McCullough, 5 MS. No. 414. the utmost the defendants could have asked, would have been that the assignee of the plaintiffs should have entered into a consent rule to become liable for the costs.

I am aware, that participation in profits is enough in most cases to make a man a partner. The ease of Simpsom v. Pheltz, 1 McC. Chan. R. 213, is full to that point. But although it makes him a partner in the concern, yet it gives him no title to the capital stock, if his interest be merely in the profits. That seems to be the case with the witness, Burr — the goods were purchased by the plaintiffs, and he, as their agent, sold them. For his services, he was to receive a part, one-half of the nett profits. This was an interest merely, hi the profits, when the goods were sold. The goods, until sold, were the property of the plaintiffs ; and when unsold, he had no interest whatever in them. The plaintiffs could maintain, by their property, trespass or trover against a stranger, who might take them away.

So too, I think, there is no doubt, where one does not become a member of a concern, but is to act as an agent or clerk in effecting sales, and his compensation for his services, is to be measured by the profits, that in such a case, he would not be a partner. It is true, that unless there were profits, he could not receive any compensation, and to ascertain whether there were or not profits, losses as.well as expenses, must be deducted; and hence therefore, in an account for his services, he would be regarded as quasi partner to ascertain his compensation. But he has none of the general rig-1 its of a partner, nor is he subject to his liabilities. He stands merely as an agent managing for his principal a mercantile concern.

The motion is dismissed.

Richardson, J. Evans, J. Frost, J. and Withers, J. concurred.

Motion refused.  