
    *Aspinwall v. Williams and others.
    Articles of agreement for constituting a partnership, assigning to each party the performance of certain things to put the business to be carried on into operation, constitutes a partnership immediately, not from the commencement of the business itself.
    Where the articles of copartnership do not fix the name of the firm, and a contract is made by ono partner for the joint account, a note executed by one for the whole, in the name of himself & Co., is binding on all.
    This cause was tried before the Supreme Court of Hamilton county, at May term, 1823, and a verdict rendered for the defendant. A motion was made for a new trial and reserved for decision upon a case stated, at the special session in Columbus.
    The substance of the case is as follows: On the 31st of July, 1818, the defendants entered into contract, of which they made a memorandum in writing, in the following words:
    “Memorandum of an agreement made and entered into this thirty-first day of July, one thousand eight hundred and eighteen, between Jacob Williams, of Mill Creek township, Hamilton county, State of Ohio, on the first part, and Benjamin Gardner, Jr., and William Chase, of Newport, State of Rhode Island, on the second part, witnesseth, that the said Jacob Williams, Benjamin Gardner, Jr., and William Chase, do agree to erect and build a distillery for the distillation of grain, jointly to share and share alike the cost of said establishment, to be erected on the ground of said Williams, near where he now resides. Now the conditions of this agreement are such, that the said Williams does, for himself, his heirs, and assigns, agree to lease for the occupation of said establishment, a certain lot of ground, not to exceed more than two, or be less than one and one-half acres of land, through which there is a running stream of water, for the sole use of said establishment, or those interested therein; this lease to continue for the full term and time of fifteen years, to commence from the time of signing these instruments: and for his part doth further covenant and agree to erect the necessary buildings in order to go into the operation, to commence thereon immediately; the said Gardner and Chase do on their part agree to provide the stills and worms of said establishment. It is further understood that a store of goods shall be established, to be furnished by said Gardner and Chase; and after the establishment shall be completed, the goods and stills on the spot, an equal proportionate of the amount paid by each shall take place, and a full adjustment be made. The whole establishment, goods, etc., etc., is to be equally owned by us three. The said Gardner to manage all things appertaining to the distillery inward, and *the said Chase all that concerns the outdoor business of the establishment; the said Williams to be consulted in all things, and his advice always to have due weight. Further, we, the said Jacob Williams, Benjamin Gardner, Jr., and William Chase, do by these presents bind ourselves, our heirs, and assigns, for the full and faithful performance of the above obligations ; and should either of the parties feel disposed to sell or dispose of their interest therein, the remaining parties shall have the offer to buy out; and after the expiration of the lease, it shall be at the option of the said Williams to continue, or sell out; and that a settlement of all accounts shall take place quarterly, or half yearly. Respecting the purchase of grain, it is understood that whatever purchases each of the parties may make, it is to be binding on all the parties, or that what sales of whisky or gin each one may effect, the other parties are to comply with.”
    Received five hundred dollars, in full for all damages, costs, and debts, and especially for all damages on or respecting this article.
    Jacob Williams.
    
      After the making of this contract, the defendant, Chase, proceeded to New York with letters from merchants in Cincinnati, stating the character and responsibility of the defendant, Williams, upon the credit of which the plaintiff sold him a quantity of merchandise, and took a note for the amount executed by Chase in the name of William Chase & Co. Upon this note the action is brought. It was admitted that Williams know nothing of Chase carrying letters recommending his credit, to New York. It was also admitted that none of the goods came to the use of Williams, and that the business of distilling was never commenced between the parties.
    Hammond, for the plaintiff.
    It is insisted that the contract constituted an entire, and complete partnership from the moment of its execution, and that the stipulations as to what shall be done by the different parties for carrying the partnership into effect, and setting it in operation, are nothing more than agreements what part each shall perform upon the partnership account.
    On the other hand, the defendant, Williams, insists that the agreement does not constitute an immediate partnership; that it is nothing but a contract to commence a partnership hereafter, upon the performance by the respective parties of particular things which *they covenant to perform — that these things not being performed, no partnership ever existed. This interpretation of the agreement appears to me untenable for various reasons.
    The first stipulation is in the present tense; the parties “ do agree to erect and build a distillery for the distillation of grain, jointly to share and share alike the cost of said establishment.” A distillery', when erected, consists not merely of the house, but it consists also of the stills placed in furnaces, worms in their proper vessels, troughs, tubs, etc. — including everything necessary to carry on the.process of distillation from grain. The agreement to erect and build a distillery necessarily includes the preparation, in their proper places, of everything essential to the establishment. This the parties agree to do jointly — and they add, so as to leavé no ground for misapprehension, that they are “ to share and share alike the cost of said establishment.” The term establishment fully explains the proper interpretation of the term distillery before used, as I claim it must be understood.
    
      It seems clear to me that here is a present partnership established for the erection of the distillery, and that every act done toward effecting that object, must be done upon the partnership account. After having thus created the partnership, the members agree between themselves that Williams shall erect the buildings, and that Gardner and Chase shall provide the stills and worms. The distillery, the establishment, includes all these, and that is to be erected or built jointly. Williams, in erecting the buildings, must act for the company — Gardner and Chase, in providing stills and worms, must act for the company; thus every act done by either party, in completion of this part of the agreement, must have been an act performed for the account and advantage of the company, for which the company must be responsible. Had Williams employed hands to furnish materials, or mechanics to erect the buildings, would the law permit Gardner and Chase to say: True, this work was to be done by Williams and ourselves jointly; we were to share and share alike the cost, and what has been done is for our benefit, yet Williams agreed with us to do this for his part— you made your contract with Williams, and you must look to him for compensation. It is most certain that the law would not permit Gardner and Chase, in the case stated, to hold this language. Had Gardner and Chase purchased stills and worms for the establishment-, could -Williams be permitted to say: I am not responsible for the price. To be sure they constitute part of the distillery to be erected and built jointly; *the articles of co-partnership give me a right of property in them; but Gardner and Chase were to provide them, and they alone are legally bound to make payment. This surely could not be permitted. Is the case of the purchase of the store in any respect essentially different?
    
      “ It is further understood that a store of goods shall be established, to be furnished by said Gardner and Chase; and after the said establishment shall be completed, the goods and stills on the spot, an equal proportionate of the amount-paid by each shall take place, and full adjustment be made, the whole establishment, goods, etc., to bo equally owned by us throe.”
    Can there be any serious difficulty in giving a just interpretation to this provision? I can see none. The establishment shall include a store of goods which shall be furnished by Gardner and Chase; when furnished, it shall be equally owned by the three part* ners. What sum of money, of their own property, Gardner and Chase shall have expended in furnishing the goods, and in providing the stills'and worms, and what sum of money Williams shall have expended of his own property in erecting the buildings, shall be apportioned to each — the accounts shall be adjusted — but no matter what the relative proportion may be, the whole shall be a company concern, and each shall own an equal interest without regard to his individual expenditure. This certainly is the legal interpretation of the contract.
    The defendant, I am informed relies much upon the case of Saville v. Robertson and another, 4 Term, 720. This case, as I think, is not in point for him. The judges differ in opinion, which weakens its authority. But it is distinguishable from this case in all its important bearings.
    In the first place, it is decided that there was a partnership in regard to the ship, and, in this particular alone, the case resembles ours. With respect to the cargo, each party was to be interested according to the amount of cargo furnished by him. This is not our case. The parties are to be equally interested, no matter what amount is furnished by each. When the extent of interest depends upon the amount of capital furnished, it is impossible to say that the partnership can be bound for contracts to supply that capital. Each individual partner must be regarded as contracting to procure his own share of the capital. But when the interest is to be equal, without reference to the amount furnished by each, it is very natural to infer that each makes his purchases for the whole. He *c.an have no inducement to involve himself, because the only consequence is to make himself a creditor of the company. Third persons can have no inducements to credit him —for if he advance four-fifths of the whole capital, where there are partners, except as to one-third, he is only loaning money to his copartners.
    In this case of Saville, the supplementary agreement of 28th July, 1787, expresses distinctly the understanding of the parties that they are not to have any interest in the amount furnished by each other, and that they are not to be separately liable for the advances of each other. This is not like our case, because with us all are equally bound' to do part, and all are to receive equal proportions of the aggregate property. There is a joint interest in everything as it is brought into the use of the company, no matter by ■whom supplied; and this of itself creates a joint responsibility. See Watsop on Partnerships, 5-25; Com. on Contracts, 286,300; 1 Camp. 185, 329.
    In Saville v Robertson et al., Lord Kenyon says, “ It is clear that if all these parties had been partners at the time when the goods were furnished, though that circumstance was not known to the plaintiffs, they would all have been liable for the value of the goods” — 725. Now it is clear that in our case the parties were partners for creating a distillery establishment — and that a store of goods, according to the articles of copartnership, was to constitute a part of that establishment, in which all the parties were to be equally interested. If such store of goods be purchased by one partner upon the credit of the whole, surely the whole, who were to share and share alike in the amount, ought to be responsible for the cost.
    In the case of Saville, the copper purchased to repair the ship was held to bo chargeable to the company, because the company were alike interested in the ship. But the copper purchased as an adventure was not allowed to be charged upon the company, because they had no interest in the purchase, and in no event could derive advantage from it. And besides it was purchased upon the individual credit of Pearce. In our case the goods were purchased upon the credit of Williams, and had Chase acted honestly, Williams might have derived benefit from them. The circumstances under which the purchase was made constituted Williams part owner of the goods. If loss is sustained by the knavish conduct of Chase, Williams ought to bear it, rather than the plaintiff. Williams trusted Chase, and gave him credit; the plaintiff trusted ^Williams not Chase. It was by receiving Chase as a partner that Williams enabled Chase to impose upon the plaintiff, and it was by the interest acquired in the goods by virtue of the partnership that Chase was enabled to sell them so as to divest the title and ownership of Williams.
    Williams’ receipt on the article recognizes a liability for costs and debts. Now no liability for debts could exist if the copartnership had never commenced. Damages might have been sustained in consequence of the other parties not perfecting the copartnership, but debts could not have been incurred. This receipt is therefore an acknowledgment by Williams that the partnership had existed and had incurred debts — and this acknowledgment settles the question, unless it is shown to have been made under a mistake of the parties’ rights.
    If a partnership exist, and one member be sent to make purchases for the partnership account, with instructions to make such purchases as if for himself, the company are nevertheless liable, if the company receive the articles purchased. It is not permitted to a partnership actually to receive goods tor their own use, and shift the pecuniary responsibility upon an individual member. In this case, after the article of agreement to erect a distillery jointly and to share and share alike the cost, a subsequent provision that Williams should build the house, and Gardner and Chase provide the stills, could not, in respect to strangers, change their joint liability.
    Whatever they agree to do jointly, to supply jointly, and to own jointly, they must jointly pay for, no matter on whose credit it may be supplied. In the case of Saville, the copper to repair the vessel appears to have been furnished as entirely on the credit of Pearce as the copper for exportation; yet the company was held liable because they were jointly bound to fit out the vessel. For the copper furnished for exportation they were not held liable, because they had no interest, and could have no interest in it.
    The plain letter of the contract, and the conduct of all the parties, alike contradict the position of the defendant. If it were a ease in which each party agreed to furnish certain sums of money, or specific articles,, to create a foundation whereon an association should be afterward erected, no partnership cost or debt could arise; nothing of this kind could exist to be satisfied by pecuniary compensation. Williams’ receipt, therefore, most strongly confirms and corroborates the natural and obvious interpretation of the terms used in the contract.
    *Corry for defendant:
    We contend that the articles of agreement prove no actual existing partnership between the defendant, Williams and Chase, at the time the goods were purchased from the plaintiffs, and the note on which the suit is brought was executed. But they exhibit a project of a partnership contemplated to be perfected at an indefinite future period, resting on the performance of the conditions contained in the agreement of the contracting parties. That this agreement is executory, is manifest from its provisions, “ That the said Williams does, for himself, his heirs and assigns, agree to lease, for the occupation of said establishment, a certain lot of ground,” etc.; not that he does hereby demise, grant, and to farm let a certain lot of ground, etc. “And, for his part, does further covenant and agree to erect the necessary buildings, in order to go into the operation, to commence thereon immediately.” That is, that he shall immediately commence the erection of the necessary buildings to go into the operation of the distillation of grain, an undertaking that necessarily required some time and much labor for its completion.
    Again, “ The said Gardner and Chase do, on their part, agree to provide the stills and worms for said establishment. It is further understood that a store of goods shall be established, to be furnished by the said Gardner and Chase; and after the establishment shall be completed, the goods and stills upon the spot, an proportionate (apportionment) of the amount paid by each shall take place, and a full adjustment be made,” etc. To provide stills and worms, and furnish a store of goods, to bring them to the spot, and to adjust the proportion of stock each party to the agreement would be entitled to, necessarily required some time for their accomplishment. Hence, it is evident that this agreement was, from the terms of it, executory in its nature. But the plaintiffs have failed to prove that the provisions of this contract had been complied with by Gardner and Chase on their part, at the time the goods were purchased from the plaintiffs and the note in question given by William Chase in the name of William Chase & Co. Hence, it is most manifest, that at that time no actual partnership did exist between Chase and Williams, and therefore he had no authority to bind Williams or to render him in any way responsible to others. This position is fully supported by Watson on Partnership, in margin, page 184, where it is declared: “ So essentially necessary is it that a person sought to be charged should have been actually a partner at the time the contract sued upon was entered into, that if it clearly appear that no ^partnership existed at the time of the contract, no subsequent act or acknowledgment by him will render him liable.”
    The case of Saville v. Robertson and Hutchinson, 4 Term Rep. 720, illustrates and establishes the foregoing doctrine; that was an action for goods sold and delivered to Samuel Pearce. At the trial a special ease was reserved, which stated as follows: “ In April, 1787, the defendants and one Samuel Pearce, since deceased, and one William. Robertson, since a bankrupt, entered into the following articles of agreement:
    “Articles of agreement made the 19th day of April, 1787, between J. Hutchinson and J. Robertson, of London, merchants and copartners, as well on the part and behalf of themselves, as of others who shall subscribe their names on the back of these presents, of the one part, and Samuel Pearce, of, etc., merchant, of the other part, etc.
    “ Whereas the said Samuel Pearce is the sole owner and proprietor of the ship Triumph, etc., and whereas the said J. Robertson, J. Hutchinson, and others, who have or shall subscribe their names on the back of these presents, have mutually agreed upon a joint undertaking and risk, as to profit and loss, in a certain voyage or maritime adventure about to be performed under the direction of the said parties, who have or shall have a majority of interest therein, or of a committee appointed by them: now these presents witness that the said J. Robertson and J. Hutchinson, on behalf of themselves and all others who shall subscribe, etc., and the said Samuel Pearce, for himself, in consideration of the trusts which they severally repose in each other, mutually agree with each other, etc.: 1. That the said ship Triumph, of which the said Samuel Pearce is the sole proprietor, shall, from the day of the date, until her return from her intended voyage, be at the disposal, direction, and risk of all the parties hereto jointly, at the valuation of 3,750¿., etc. 2. The said J. R. and J. H. and others shall, on or before the 20th of August next, provide a cargo of goods to the value of between 22,000i. and 25,000Z., which goods shall, in the opinion of a majority of the parties to these presents, be deemed eligible for the voyage and markets, etc. 3. The additional outfits of the ship, in cables, etc., shall be on the joint account, etc. In case the said Pearce shall be desirous to increase his interest in the said joint concern, by shipping on the joint account as he may think proper, the goods to be such articles as a majority of those concerned or their committee shall approve as proper for the voyage, etc., *that the 3,7501., together with such additional goods as he may ship, to be his share of the capital in the joint undertaking, etc., and to receive the profits and bear the loss in proportion as the amount of all such sums shall be to the remainder of the said joint concern, etc. And the said J. Robertson, J. Hutchinson, etc., shall receive the profit or bear the ■loss in proportion to the sums set opposite their several names, etc. Signed and sealed by J. Robertson, J. Hutchinson, S. Pearce, and W. Robertson.” The remaining articles are not material.
    In May, 1787, the plaintiff, on the order of Pearce, supplied copper to sheath and repair the ship Triumph, to the amount of 482i. In August the plaintiff delivered copper on board the ship by the order of Pearce, to the amount of 9382. 3s. 3d., which formed a part of the cargo thereof. In October, 1787, the said ship sailed from London to Ostend, and thence to the East Indies, with the goods as furnished by the plaintiff, and other goods on board. In January, 1788, Pearce became a bankrupt, and Saville proved his debt under the commission against him, etc.
    “Lord Kenton, C. J. Some of the points made at the bar admit of no doubt: It is clear that if all these parties had been partners at the time these goods were furnished, though that circumstance were not known to the plaintiff, they would all have been liable for the value of the goods. But my difficulty arises from the form of this action, which is for goods sold and delivered; for I do not see how any act which passed subsequent to the delivery of the goods, can have any retrospect so as to alter the nature of the contract, which was not doubtful. It might have been evidence to explain it to be a partnership contract, if the contrary had not expressly appeared. The facts of the case are shortly these: Several persons who had no general partnership, nor any connection with each other in trade, formed an adventure to the East Indies. The outfit of the vessel was a joint concern of all the partners, to wit: the copper for sheathing the ship, which is admitted to be a partnership concern; but beyond that I see no partnership between the parties till all the parcels of the cargo were delivered on board, and that made it a combined adventure between all the parties.
    “I can not distinguish this case from that put at the bar, where several persons were to contribute their separate quota of money, and they applied to different scriveners to procure it. They could not all be liable for the capital which each should borrow. At the time when the copper was furnished, Pearce stood in no relation ^whatever to the other persons, but he alone bought the copper in his own name, without carrying to market the name of any other person than his own. Suppose the plaintiff had brought an action for this copper the instant it was delivered on board, against whom must the action have been brought? Pearce only: for he alone was answerable at that time. I can not, therefore, see how it can be said that these goods which were sold to Pearce only, and on his sole credit and account, were sold and delivered on the partnership account. Afterward these defendants were to gain or lose by their joint cargo. When the other goods were brought in, the partnership arose; but each was to bring in his own particular stock. But in this case, I think the question stops short of affecting the defendants, and I can not see how the plaintiff has a right to call on the defendants as partners, for the value of the goods, on a supposed contract, when the real contract between the buyer and seller was consummated before this joint risk began. Suppose several persons agreed to open a banker’s shop, and it was agreed that each partner should bring into the house a certain sum of moneyas his share. It could not be'contended that if one of them should borrow money for his share, all the ■others would be liable for it.”
    The case at bar presents a stronger case for the defendant, Williams, than the case cited exhibits for the defendants, Robertson and Hutchinson. In their case, the goods ordered by Pearce came into the possession of the contracting parties, and the adventure was actually made for the benefit of the joint concern. In the case at bar, the goods purchased by Chase, and for which the note was given, never came to the possession of the parties to the agreement, but were received by Chase, and sold by him for his sole advantage. In the one case the partnership was consummated — in the other it never has been perfected.
    There is another ground submitted to the consideration of the court. That a partner, to bind his copartners, must sign in the partnership name, when that name has been agreed upon — when not, in the name of all the members of the firm. But no name of partnership was given to this firm in their agreement, nor proved to have been otherwise made. Therefore the signature of “ William Chase & Co.” could not bind the defendant, Williams, had he been an actual partner at the time; but it will be obligatory on William Chase only.
   ^Opinion of the court, by

Judge Burnet.

The question to be decided is, was there a partnership at the date of the note, so as to render Williams liable to this action.

On the part of Williams, it is contended, that these articles do-not show a partnership, at the time the note was given, but only a-project for a partnership, to be consummated at a future day.

For the plaintiff, it is insisted that the contract created a complete partnership from the moment it was signed, and that the-stipulations as to what each partner shall do, are nothing more than a distribution of the services to be performed by each, for, and on account of the joint concern.

In deciding the question submitted, it is necessary to ascertain what constitutes a partnership in the view of the law. Having donoso, we may determine the true construction of this contract, and whether it did or did not create a partnership between the parties, from the time of its execution.

A partnership has been defined to be “ a contract of an association, by which two or more contribute money, goods, or labor, to the end that the profits may be ratably divided between them.” This definition, as far as it goes, is said to.be unexceptionable; but it is incomplete, as to third persons, between whom and the parties the question most frequently arises. In this respect, it is observed that he who shares in the profits ought to bear his portion of the^ losses, because by taking the profits he takes the fund on which the creditor relies for payment. In order to constitute a partnership so - as to make a person liable as a partner, there must bo some agreement between him and the ostensible person to share in the profits, or he must have permitted the ostensible person to 'use his credit, and to hold him out as one jointly answerable with himself. 1. Com. on Cont. 286 ; Doug. 371.

In order to constitute a partnership, a communion of profit and-' loss between the parties is essential, and this is the true criterion to judge by, when the question is, whether persons are parties or not. 1 H. Blac. 43, 48. Where one takes a moiety of the profits, he shall, by operation of law, be made liable for losses. 2 H. Blac. 247. But where an agreement was made for the purchase of goods, in the name of one, for the benefit of several, but the agreement did not extend to a joint sale of the goods, a majority of the court held that it was not a partnership, but had the agreement extended to the sale as well as the purchase, all would have been liable, though but one was known in the purchase. 1 H. Blac. 37. Though in-*point of fact, parties are not partners, yet if one so represent himself, and by that means gets credit for the other, both shall ba liable. 1 Esp. 29. In the case of Waugh v. Carver and Giesler, 2 H. Blac. 235, it was admitted that the parties to the contract did not intend to become partners, or to carry on trade at the risk of each other, or to become liable for each other’s losses, but yet it was. determined that as to third persons they were partners, because it appeared from certain parts of the agreement that they intended to share the profits. This case was decided principally on the authority of Grace v. Smith, 2 Blac. 998, in which it was settled that every man who takes a share of the profits, ought, by operation of law, to bear his share of the loss. Let these principles be applied to the case before us, and there does not appear to be any room for serious doubt. It might have been the intention of the parties to the agreement that each person should pay for the articles or goods he purchased; but the expectation of partners is not to affect the legal right of their creditors. The question is not simply, what the parties intended by the contract, but whether third persons had not a right to rely on their joint credit. To determine this we must refer to the agreement itself. The first provision is, that the three parties to the contract, do agree to erect and build a distillery jointly, to share and share alike the cost of said establishment. The defendant, Williams, is to lease a certain lot for the use of the establishment, to continue for the term of fifteen years and to commence from the time of signing the said instruments. He agrees on his part to erect the necessary buildings — Gardner and Chase agree, on their part, to provide the stills and worms for said establishment. A store of goods shall be established, to be furnished by Gardner and Chase. After the establishment shall be complete, the goods and stills on the spot, the whole establishment, goods, etc., to be equally owned by the three partners. From this it appears that the parties were all equally interested in the establishment. They were to be joint owners of the goods, which were to be sold at their store, for their common benefit. They were -consequently to participate in the profits.

Again. It would seem that the term, establishment, as used in the agreement, was intended to embrace the whole concern of the parties, and to include the store, as well as the distillery. If this inference be correct, no doubt can remain, as the first article in the contract provides, that the parties shall share and share alike the most of the establishment. The cost of an establishment must -^include all moneys expended, and all debts contracted in the completion of it, which would, in this ease, include the debt on which-the suit is brought. The mind seems to be irresistibly led to this conclusion from the consequences that adifferent construction would produce on the parties themselves. Admit for a moment that the-defendant’s construction is to be sustained, and what is the consequence? Williams, on his part, is to furnish the ground and to erect the buildings, at the joint cost of all the parties. Chase- and Gardner, on their parts, are to furnish the stills, worms, and goods at their own individual cost; and when all are furnished, each is to be an equal owner of the whole. The injustice of such a construction, must be apparent.

But if it be admitted that the store was not considered as a part, of the establishment, but merely as an appendage, the same conclusion seems to follow, for as the principal establishment was by express stipulation to be erected at the joint cost of all the parties, the appendage to the establishment must be provided on the same terms. Justice requires it — the common sense of mankind requires it.

Had it been the intention of the parties to provide for a partnership, to commence at a future day after each of the parties had furnished his portion of the stock, the contract would have contained some stipulation as to the amount to be furnished by each, and that, it should be on his own credit, so that each might bring into the* common stock an equal portion of it. But nothing is said on this subject. Each party is left to his own discretion. The building-may cost much or little — the assortment of goods may be small or extensive — yet each is to be equally interested in, and an equal owner of the whole.

In forming an establishment of this kind, various duties and services were to be performed, and it was natural to distribute these-among the parties with reference to their different capacities; hence we find that Williams was to have the building erected, and. the other partners were to lay in the goods. This consideration-will sufficiently account for this part of the arrangement, without searching for any other cause, and when in connection with this it. is considered that all the disbursements and engagements of Williams, in performing his part of the contract, were to be at the joint , cost of the concern, it seems to remove all doubt as to the understanding of the parties themselves on this point.

But some stress has been laid on the clause, that “ an equal proportionate *of the amount paid by each shall take place, and a [97 full adjustment be made.” What we are to understand by an equal proportionate in this case can not be easily told, as that^erm is never used in any sense in which it can be understandingly applied in the connection in which we here find it. The meaning of it may be ascertained by determining what the intelligible parts of the contract require it should be. It is certain that a partnership is provided for — that a distillery is to be established — that the parties are to share and share alike the cost of the establishment — that a store of goods is to be furnished — that the parties are to perform different services in getting the establishment into operation — and that they are to be joint and equal owners of it. These provisions would seem to require another, that each party should render an account of his purchases and payments, in order to ascertain- the whole amount of capital, the sum advanced by each, and the debt contracted on the credit of the company, by which their situation would be known, and their accounts could be correctly stated and adjusted. But in such a provision we can not see anything inconsistent with the commencement of a partnership from the date of the contract.

Great reliance is placed on the case of Saville v. Robertson, which the defendants consider as establishing the construction for which they contend. Independent of the fact that the court were divided in that case, we can not but view it as operating rather against the construction they contend for, inasmuch as the leading facts on which a majority of the court found their opinion do not exist in this agreement, and in the absence of those facts it can scarcely be doubted that the whole court would have concurred with Ashhurst ; but let us examine the case, and compare it with the one before us. In Saville’s case, each individual was to have an interest in the cargo equal to the amount of goods he might furnish. In this case, each party was to have an equal interest in the whole establishment. In that case the contract extended to a single voyage only, at the expiration of which each party was to receive back the amount of cargo he had furnished. In this case the contract was to continue fifteen years, and the interest of the parties was not governed by the amount furnished by each. In that case it was expressly stipulated, that the parties should not be liable for the engagements of each other. In this case it is as expressly stipulated that the parties shall share and share alike the cost of the establishment. In that case the copper for which the suit was brought was purchased on the individual credit of Pearce, who did not take the name of %ny other person into market, nor did the seller look to the responsibility of any other. In the casebefore us, Chase took the names .of all the parties into market, and the goods were purchased on the responsibility of the defendant Williams. In that ease it was stated what should be done on the joint credit of the company, and what on the credit of the members individually; it was provided that one should not be bound by the contracts of another, and no confidence had been created nor any credit obtained in consequence of the association. But in this case there is no such provision. Williams was held out as a partner; his name was carried into market, and the fact of his being a member of the company procured for it all its credit. Connected with these circumstances the facts, that the parties were to share the cost of the establishment — that Williams was to be an equal owner of the goods which were to be sold for their joint account, and that they were all interested in the profits, and it would seem that no doubts can remain. It would certainly be a novel case if Williams was to furnish his part of. the stock at the joint cost of all the parties — Gardner and Chase to furnish their part at their own individual cost, and then each partner should be an equal owner of the whole. Such a construction can not be admitted.

There are other circumstances in the case from which inferences might be drawn; as for example, the language of the article is in the present time — the parties do agree to erect, etc. — the law shall commence from the time of signing the instruments, and the receipt on the back of the article recognizes a liability for debts as well as for costs, but wo have not thought it necessary to dwell on these facts.

We do not discover any serious difficulty in the form of executing the note. The agreement being silent on that subject, the fair presumption arising from all the circumstances is, that the form adopted by Chase was the one agreed on by the parties.

We are clearly of opinion that the partnership commenced from the signing of the articles, and that the plaintiff had a right to look to the credit of all the parties. A new trial, therefore, must be granted.  