
    ESTHER GREGORY and another, Respondents, v. BENJAMIN BROOKS, Appellant.
    
      Partnership—Fa/rm—agreement to work on shares.'
    
    An agreement was entered into, by which defendant was to work a farm of the plaintiffs on shares, which, after providing for the division of the crops, contained the following clause: “All the profits arising from the working and farming of said farm, to be divided equally between the parties to this agreement. All losses and gains upon said farm for one year from the 1st of March, 1870, is to be divided equally between the said parties.”' Held, that a partnership was not thereby created between the parties.
    At the trial, the following question was put to defendant: “During the whole term was there a profit made or loss sustained in the general result? state all the facts.” The referee refused to allow him to answer it. Held,, that this was proper, as the question was too general; and that as the first part of it was clearly objectionable, that was sufficient to authorize its rejection as an entire question.
    Defendant offered to prove the cost of picking, curing and baling the hops. Held, that the evidence was properly rejected, for the reason that by the terms of the contract, defendant was bound to perform this work, and because no such claim was set up in the answer.
    There were two dwelling-houses upon the farm, one of which, before the making of the agreement, and during the continuance thereof, was occupied by the plaintiffs and the other by the defendant. The defendant offered to prove the value of the use of the dwelling occupied by the plaintiffs. Held, that as the agreement contained nothing in regard thereto, and as both parties had acted on the assumption that each was entitled to the possession of the house occupied by himself, that the evidence was properly rejected.
    Appeal from a judgment, in favor of the plaintiffs, entered upon the report of a referee.
    This action was brought to recover the sum of $264.05, alleged, to be due the plaintiff's, under a written agreement to work plaintiffs’ farm upon shares, for one year, the plaintiffs claiming that the proceeds of certain crops received by defendant, had not been divided. By the agreement, the plaintiff's let and leased to the defendant their farm, for the term of one year. The plaintiffs were to furnish eleven cows, one horse, three yearlings, fourteen sheep, and all farming utensils on the farm, excepting the mowing machine. The defendant was to furnish one horse, one cow; to keep the farming tools in repair upon the farm; to pay interest on the cash value of five cows, at their appraised value; to pay for the use of mowing machin'e, owned by the plaintiffs, at a price to be agreed upon, and to leave the farm in as good condition at the expiration of the lease as it was when taken possession of, and also as many acres of ploughed ground as there were on the 1st of March, 1870. The lease also contained the following covenant: “ And it is further stipulated and agreed between the said parties, that the profits of ten cows are to be equally divided between the said parties to this agreement. That the threshed grain is to be divided when threshed, the potatoes when dug, the corn when husked ; all grain crops, roots and vegetables to be divided by measure. All the profits, arising from the working and farming of said farm, to be divided equally between the parties to this agreement. All losses and all gains upon said farm, for one year from the 1st of March, 1870, are to be divided equally between said parties.” The answer, after reciting the agreement, among other things, alleged : That no settlement or accounting has been had between the parties, and that all matters between them, relative to the occupancy of the farm under this agreement, including gains made and losses sustained, remain open, unsettled and unliquidated ; and also, that in the management of said farm during the term, a net loss of $150 was sustained by the defendant. In the prayer for relief, he asks that an accounting may be had, and that the plaintiffs may be adjudged to bear their share of the loss. The answer also set up a counter-claim, which was denied by the reply. The action was referred, by consent, to Hezekiah Sturges, as sole referee to hear and determine, and was tried before him June 13th, 1872.
    After the plaintiffs had put the agreement in evidence, the defendant’s counsel asked the referee to dismiss the complaint and order judgment for the defendant, upon the grounds that it appeared from the contract in evidence that a partnership between the parties was created by the terms of said contract; that no accounting had been had, etc., and that an action at law could not be maintained; that plaintiffs’ only remedy was an equitable action for an accounting. The referee denied the motion, to which ruling the defendant’s counsel excepted.
    The referee gave a report in favor of the plaintiffs, for $166.74, with costs.
    Exceptions to the report were taken by the defendant’s counsel.
    Upon the trial, objections were made and exceptions taken to the decisions of the referee, in regard to evidence, which are referred to in the opinion. A judgment was entered upon the referee’s report, and the defendant appealed.
    
      I. Bu/rditt and Jenks da Matterson, for the appellant,
    insisted that by the agreement, the parties became partners. (Champion v. Bostwick, 18 Wend., 183; Collyer on Part., 12, 13, Perkins’ ed.; Musier v. Trumpbour, 5 Wend., 274; 16 Johns., 34; Parsons on Part., 36; Allen v. Davis, 13 Ark. R., 28.)
    
      J. E. Dewey and G. S. Gorham, for the respondent,
    cited, as to the question of partnership, 1 Parsons on Cont., 60; Putnam v. Wise (1 Hill, 234); Tanner v. Hills (44 Barb., 428); Chitty on Cont. (232, 233); Smith v. Watson (2 B. & C., 401); Tripp v. Riley (15 Barb., 333); Dinehart v. Wilson (15 Barb., 595); Chase v. Barrett (4 Paige, 148).
   Miller, P. J.:

Although the language employed in the concluding portion of the article of agreement between the parties, of itself and. alone, might be interpreted as establishing the relationship of a partnership between them, yet, looking at the intention of the parties, as expressed in the agreement, and as may be inferred from the surrounding circumstances connected with the transaction, I am of the opinion that no partnership was established. It is apparent, from the contract, that the agreement was in the nature of a contract for the working of a farm on shares, or for the cropping of the same by the defendant, and the delivery of a portion of the avails to the plan tiffs for the use of the farm. This does not, as I understand, constitute a copartnership, in the ordinary acceptation of that term. Even if a partnership was made out, inasmuch as the parties were allowed to prove the claims which they had against each other, and a full accounting was had between them, of all the transactions arising under the contract, I am at a loss to see how that question can be of any importance in disposing of the case.

It is true that the action was to recover at law, and the complaint did not contain the usual averments, demanding an account, which would be employed in a bill in equity for an accounting between copartners, but the complaint and answer together presented the claims of each of the parties, and the whole subject-matter of the controversy was fully investigated. Under the liberal rules as to amendments, established by the Code of Procedure, even if the complaint was insufficient, I think it may be considered as amended to meet the facts proved, if any such amendment is required to answer the ends of justice. From the observations made, it follows, that there was no error on the part of the referee in any of his rulings as to the copartnership, and if there was they are not of a character to demand a reversal of the judgment.

Some objections are urged as to the admission and rejection of evidence offered, which require consideration.

1. It is said the referee erred in rejecting the offer to prove the loss sustained on the horse bought by the defendant of the plaintiffs, and used under the contract, and that the same was unsound, and represented to be free from disease. It is difficult to see how the plaintiffs could be made responsible for a deterioration in value, occasioned, as the offer showed, by disease contracted while engaged in labor upon the farm. The offer to show a breach of warranty, was not pertinent to the issues made, and if it had been, it is a sufficient answer to say that no such defense was interposed by the defendant.

2: There was, I think, no error in excluding the question put to the defendant, as follows: “ During the whole term, was there a profit made or loss sustained in the general result ? state all the facts.” The" question was objected to, as too general, and as incompetent, and it is plain that it was liable to the first objection, at least. The first part of it was clearly objectionable, which was sufficient to reject it as an entire question. The latter part also embraced a scope of inquiry, which it was the province of the referee to restrict within proper limits. The inquiry should have been made more specific, so as to show the relevancy of the question put. It may also be remarked that the general offer to show the expense of working the farm, was not relevant under the agreement, and did not affect the right of the plaintiffs to demand an accounting for their share of the produce, which the defendant had appropriated and used. The question was what the defendant had received and converted, or refused to divide, and not what profit he had made, or loss he had sustained.

3. The offer to prove the cost of picking, curing and baling the hops, was properly overruled, for the reason that, by the terms of the contract, the defendant was bound to perform this work, and because no such claim was set up in the defendant’s answer.

4. The offer to show by items, that the cost, in cash paid out, of raising the hops and preparing them for market, exceeded the amount received, could in no view have been competent, as this was a part of the contract which the defendant had agreed to perform.

5. The proof of the value of the use of the cow on the farm, used by the plaintiffs, was properly overruled, as the lease provided that the plaintiffs were to put eleven cows on the farm, and the defendant one, and the profits of the ten were to be divided, thus providing for the use of one cow for each family.

6. I am inclined to think that there was no error in the refusal of the referee to allow proof by the defendant, of the value of the use of the dwelling-house and out-buildings, occupied by the plaintiffs during the term. Nothing is contained in the agreement in regard to the dwelling-houses; and the two dwelling-houses on the farm were occupied, the one by the plaintiffs, who continued to occupy as before the contract, and who never gave up possession to the defendant, and the other, by the defendant, who never claimed possession of the other dwelling-house, each family cultivating one-half of the garden. There was no implied promise to pay rent, by the plaintiffs, and no relation of tenant to the defendant, created by the agreement, and both parties acted upon the assumption that each was entitled to the possession of the buildings occupied by them, respectively, and acquiesced in this practical construction of the contract.

7. The proof of milking the cows by plaintiffs for defendant, was also competent, and, as plaintiffs were partners in the farm, was a proper charge against the defendant.

There was no error upon the trial, and the judgment must be affirmed, with costs.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs. 
      
       1 Parsons, p. 60.
     