
    Stephenson v. Cornell.
    It is decided in this case, that the parties to the agreement recited in the opinion were, upon the evidence referred to, to be regarded, as to the public, as partners.
    APPEAL from the Tippecanoe Court of Common Pleas.
    
      Tuesday, June 22
    
   Per Curiam.

Suit by Walter Cornell against Evan Stephenson, to recover the value of a yoke of oxen alleged to have been wrongfully taken by the latter from the former person. Answer in general denial. Trial, and judgment for the plaintiff. Motion for a new trial, &c.

It appears that on the 14th day of July, 1853, Jesse Stingley and Evan Stephenson entered into an agreement as follows:

“ This witnesses that we, Jesse Stingley of Tippecanoe county, Indiana, an'd Evan Stephenson of Scott county, Kentucky, have this day entered into a co-partnership for one year from this date, to-wit, for 12 months from July 14, 1853, to July 14, 1854, upon the following terms, to-wit: The said Jesse Stingley is to move his family into the house upon E. Stephenson's farm on Big Pine, now occupied by Ab’t Jackson, by the 1st of October next, and from this date {July 14th) the said Stingley takes charge of all said Stephenson's interest upon said farm, viz., 114 head of feeding cattle, valued at about §31.97 cents a head; 1 yoke of oxen which cost §102.60 cents; 1 do. cost §80; 1 pair mules cost §250 (left simply in care of said Stingley); about 40 head of hogs, sows and pigs, valued at §90; all said Ste phenson’s rent corn (amount not known exactly), and all the corn said Stephenson has bought of Hawley, Jackson, and Mosgrove — say about 120 acres; said Stephenson’s interest in oats and hay or grass, which cost 120 dollars; hay rake $8, &e.'&e., too tedious to mention; 1 old gray, mealy mare; 1 fine roan mare; 1 fine gray-eagle mare and colt; 1 gray horse, 3 years old; 1 gray yearling; 1 bay mare; 1 bay horse, &e. &c. Said Stingley, in the absence of said Stephenson, agrees to manage, take care of, and see to, said farm and stock, preserving the timber from waste, and keeping the stock, (as far as in his power lies,) from loss and straying — feeding, cherishing and fattening the same. Said Stingley and said Stephenson enter into partnership on these principles, to-wit: The partnership is charged with interest at 6 per cent, on the capital invested in cattle and hogs (Stephenson’s horses excepted, said horses not coming into the partnership). The partnership is charged with all expenses needful to keep the farm in repair, to the advantage of stock, but not with buildings and new fences, and such like. Stephenson furnishes the capital and Stingley is to keep the farm in repair, and fix and arrange and superintend all improvements desired and provided for by said Stephenson, and to have them made in reasonable time, and at the smallest possible expense; and after capital, interest, and expenses are taken out (upon sale of stock) said Stingley is to have one-third of all the clear profits, and Stephenson two-thirds of the same. Stingley enters forthwith upon the discharge of his obligations, and promises to push forward and complete (if possible) the fencing of the large pasture-field on said farm by the 1st of August, and to have everything done after the most farmer-like fashion; to employ, at expense of partnership, a force to cut as much wild grass, and stack and salt the same, as he can possibly get put up on and against to the farm. It is understood that no geese are to be allowed to run or stibsist on said farm. About 45 acres of the land — say the 30 acres tended by Jones this year, and 15 acres adjoining — are to be put in oats next spring, and sown down in timothy and clover at expense of partnership. It is distinctly underderstood that Stephenson is entitled to two-thirds of the entire profits on all the rents, and on all profits on stock, grain sold, and everything. For breaking fresh land that has never been broke, the partnership furnishes the team and break-plow; but Stephenson, individually, pays for the services of the hand breaking. Partnership pays for breaking any lands that were once broke, but are now foul. Stingley pays all hands and board of same, for services of same in tending crop on lands that are now already broke. Stingley makes no charge against Stephenson and his friends for board when on the farm. Stephenson allows said Stingley to keep 4 or even more horses upon said farm free of expense to said Stingley, provided said horses are devoted exclusively to the services of the farm. All and every description of produce raised on the farm by Stingley comes into the partnership, interest to be divided as above. Stingley keeps 5 or 6 cows free of cost, but their calves, when weaned, come into the partnership at a fair valuation. All the hogs Stingley brings to the farm are to come into the partnership at a fair valuation. Stingley is allowed to keep 20 sheep free of cost this summer, but to pay for their wintering. Dawley and Mosgrove are to remain on the farm from 1st of March, 1854, for one year if they wish to. If said Stephenson wishes to bring blooded stock of any description upon the farm, the costs and expenses are to be remembered and put on book, and profits divided as on other stock. If the parties differ on any point, &c., they are to choose,” &c.

While in possession, under the foregoing agreement, Stingley sold a yoke of oxen furnished to the farm by Stephenson, to one Lowry, who subsequently sold them to one Orion Stingley, who sold them to the plaintiff. While they were in plaintiff’s possession under his purchase, Stephenson seized and took them away, and converted them to his own use, denying that' Jesse Stingley had any property in, or right to dispose of, any stock upon the farm, by virtue of his connection in business with said Stephenson under the agreement copied.

To what extent the written instrument constituted the parties to it partners inter se, it is not necessary we should decide.

W. C. Wilson, G. S. Orth and J. A. Stein, for the appellant.

S. W. Telford and T. Dame, for the appellee.

There was some evidence tending to show that Stephenson and Stingley held themselves out to the public as partners, and that Stingley sold stock.

Under the circumstances of the case, we think, as to the public, Stingley must be regarded as a partner, with power to bind his co-partner by the sale of the oxen.

The judgment is affirmed with 5 per cent, damages and costs.  