
    The Mohawk and Hudson Rail Road Company vs. Niles and others.
    The defendants, being engaged in the transportation of freight &c. between the city of New-York and various places west, by way of the Hudson river and canals, made an arrangement with the Mohawk and Hudson Rail Road Company by which it was mutually agreed, that the defendants should deliver their up freight, &c. to the company, at Albany, and their down freight, at Schenectady—the termini of the rail road—the company to transport the freight and passengers over their road, &c., and the defendants to pay therefor in the proportion that thirty miles bore to the whole distance of canal transportation west of Albany, assuming the contract price fixed between the owner of the freight and the defendants as the basis of the calculation: Held, in assumpsit by the company to recover for the transportation,-that the arrangement did not constitute a partnership between the parties; and this, though it was further agreed, that the company should furnish “ warehouse facilities” and pay a portion of the expense of offices at each end of their road.
    An arrangement like the above will not constitute a partnership between those making it, even in respect to third persons. Per Bronson, J.
    
      Motion by the defendants to set aside a report of referees. The action was assumpsit, and the plaintiffs claimed to recover for the transportation of freight and consignee passengers over their rail road for the defendants in the year 1839. The defence was, that the plaintiffs and defendants were partners in the transaction in question, and consequently without a balance struck and promise of payment, the plaintiffs could not Sue at law. The referees reported for the .plaintiffs, and found a balance due them of $2840,24. The facts of the case are sufficiently stated in the opinion of the court.
    
      A. Taler, for the defendants.
    
      S. Stevens, for the plaintiffs.
   By the Courts Bronson, J.

As I understand this case, the defendants were engaged in the transportation of freight and what were called consignee passengers between the city of New-York and various places at the west, by the way of the Hudson river, the canals and lakes. In the spring of 1839 they entered into an arrangement with the plaintiffs, by which it was mutually agreed, that the defendants should deliver their up freight and passengers to the plaintiffs at Allany, and their down freight at Schenectady—the termini of the rail road —and that the plaintiffs should transport the freight and passengers over their road, and then redeliver them to the defendants, or to the consignees. The contract in respect to the price for transportation, made between the owners of the goods and the defendants, was to govern the compensation of the plaintiffs, and they were to be paid in the proportion that thirty miles bore to the whole distance the goods “ were transported on the canalor rather, in the proportion that thirty miles bore to the whole distance the goods would have been transported on the canal, had the defendants run their boats between Albany and Schenectady, instead of employing the plaintiffs to carry between those places. I am unable to see that this makes out a partnership between these parties. There was no community of interests, or division of the profits of a joint concern between the parties, as there was in the cases to which we are referred. (Champion v. Bostwick, 18 Wend. 175 ; Fromont v. Coupland, 2 Bing. 170 ; Green v. Beesley, 2 Bing. N. C. 108.) The contracts for transportation were all made between the defendants and the owners of the goods. The plaintiffs had no concern, either for profit or loss, with the river, canal or lake transportation j and on the other hand, the defendants had no share, either of profit or loss, in the rail road portion of the transportation. There was no general account of profit and loss upon the whole business to be adjusted between the parties. One party might make a profit by the business, while it proved ruinous to the other. In short, the case comes to this. The defendants having undertaken to perform work and labor for third persons, employ the rail road company to do a part of the "work for them, agreeing that they will pay the company for its services the same price in proportion to distance which the defendants are themselves to receive. I do not see how this makes out a partnership, either as between the parties themselves, or in relation to third persons.

The company was to furnish “ warehouse facilities,” and pay a portion of the expense of offices at each end of the road. But this did not alter the nature of the contract.

As there was no partnership, there could be no difficulty in the way of an action at law to recover the amount due the company

Motion denied.  