
    James M. Lowry vs. William M. Brooks.
    A business in which two are engaged, but having no mutual interest in . the capital invested, and no stipulation for mutual loss, is not a co-partnership.
    The statement of a frivolous, ■with a sufficient, consideration for a contract, will not vitiate the declaration, but the insufficient consideration may be stricken out.
    It is sufficient that a declaration upon a special contract contains every material part of the contract, and almost eyery word.
    Sumter district, Spring Term, 1823.
    Tried before Mr. Justice Colcock.
    
    THIS was an action to recover damages for the non performance of the following agreement :
    Stateburgh, July 28, 1818.
    
      “ A memorandum of an agreement between James M. Lowry and William M. Brooks — Said Brooks does hereby acknowledge the receipt of an order to Duke Goodman, in Charleston, for three thousand weight of coffee, which said coffee he is to have conveyed to Kentucky, where said Lowry may think the best sales may be effected ; said coffee to be conveyed there immediately, entirely at the said Brooks’ expense ; and said Lowry is to effect the sales or barter as he may think to the best advantage, and the intention is to load the waggon back with cotton bagging,' which is to be conveyed at said Brooks’ expense, and said Lowry does bind himself to give to the said Brooks, as compensation for the above services, one half of the net proceeds on the coffee out, and the load back. After said Lowry receives the amount of the costs of coffee, the balance on the sales of coffee and the load of bagging is to be equally divided.
    Signed, Wm. M. Brooks,
    James M. Lowry.
    The declaration stated that the defendant acknowledged the receipt of the order for three thousand weight of coffee, and in stating the consideration, says — “ In consi* aeration as well of the receipt by him, the said William, of the order aforesaid, (as that for the services he undertook to render) the said James, would equally divide v.”’lh him the amount of sales of the coffee and load of bag-gin x after the costs of the said coffee was subtracted.”
    And then proceeds in the latter part of the count to state, that he the said William, by virtue of the orcier aforesaid, tin the agreement aforesaid, received from the said Dakj Daodmnn, in twenty-one bags, the eoifee aforesaid, of the value of ip 795 43 1-2 cents.”
    On the trial below, a motion was made for a nonsuit:
    1st. On the ground that the consideration was not correctly stated.
    2ntiiy. That the agreement offered in evidence did not support the agreement declared on.
    3d. Thai ¡here is an omission of material allegations in the declaration of substantia] parts of the special agreement offered in evidence ; which alleged omission was, that the defendant had not stated the receipt of the three thousand weight of coffee.
    This motion was overruled, and the motion was now' to reverse that decision, and for a nonsuit, on the ground:
    1st. That the contract is a copartnership.
    2d. That the consideration is not correctly stated.
    3d. Because the contract stated was not proved.
    And for a now trial:
    1st. Because the evidence did not agree with the declaration.
    2d. Because the damages are too high.
   Mr. Justice Colcock

delivered the opinion of the court:

On the first ground, little need be said. There is no one of the essential characteristics of a copartnership to be found in the contract. There was not a mutual interest in the capital, aud no stipulation for mutual loss. It was a mere contract for hire to carry goods Ip a certain place, and bring back a return load.

On the second ground it is conceived that the consider* •ation is well slated, even adn.itíirg that ¡be receipt of live order formed no part of the consideration, the in sc of it in the declaration, together with the true consideration, would not vitiate it. In 1 Chilly, (2(>Z-G,) it is laid down that the whole of the consideration of the defendant’s contract must be stated, and where a part oi'a consideration, or one of several considerations is frivolous and void, it is sufficient to notice only the valid consideration ; though if stated, it will not vitiate the declaration.

Miller, for the motion.

Huntington, contra.

The third ground cannot avail the defendant, for it .c>pears on examination that the declaration contains every material part, and almost every word of the ’ontn.ct.

The fact alluded to in the first ground for a new trial, which it is conceived was not sufficiently proved, was, that three thousand weight of coffee had been received. — ■ Now, the letter introduced did not say in so many v.ewis that 3000 weight had been received ; but it is said ti c order had been presented, and “the yofTee received,which can admit of no other construction than that 3000 weight bad been received, the order being for that quantity.

On the last ground, as to damages, it is clear from the testimony adduced, that a loss to a greater amount than the sum found by the verdict had been sustained by thr. plaintiff independent of the loss of his coffee;

The motion is dismissed.

Justices Richardson, Huger, Noil and Johnson, concurred.  