
    REINHOLD BOEKLEN, Plaintiff and Appellant, v. JOHN A. HARDENBURGH, Impleaded, &c., Defendant and Respondent.
    n. Partnership.—What Does Not Constitute.
    1. A mere community of interest will not constitute a partnership;
    there must also be an agreement to share in profit and loss. a. Therefore where one owns an- interest in a certain patent, to develop which certain work was performed, that fact does not necessarily of itself make him a partner with the other owner, and liable solely as partner for the work.
    2. Charge in respect to this question.—When in answer to the ques-
    tion asked the court by jury, “ Whether the fact that the defendant owned an interest in this adventure for which the work was performed, made him liable ? ” the court charged that the fact that he owned an interest in the patent to develop which the work was performed, did not necessarily of itself make him a partner with the other owner, and liable for the work ; but that if the jury found that an actual partnership existed, or that he had held himself out or allowed himself to be held out as a partner, then the plaintiff would be entitled to recover.
    Held,
    there was no error in the charge.
    Before Monell, Ch. J., and Freedman, J.
    
      Decided February 28, 1874.
    Appeal from a judgment and an order denying a motion for a new trial.
    The complaint alleged the partnership of the defendants in the business of building docks, and that they employed the plaintiff to make drawings and calculations of estimates in such business.
    The defendant Hardenburgh denied generally.
    
      The testimony as to actual partnership, or as to whether the defendants held themselves out to the plaintiff as partners was conflicting.
    Smith, the co-defendant and alleged copartner of Hardenburgh was the owner of a “ patent” for covering piles, in which Hardenburgh was interested. The patent was used in the business of building docks.
    The question of partnership was left to the jury, who retired to deliberate. Returning to the court room they asked the court for instructions on the following points :
    1. Whether the advancing of money by Harden-burgh for the enterprise, made him a partner of Smith ; and, 2d. Whether the fact that Hardenburgh owned an interest in the adventure for which this work was performed, made him liable.
    By the Court.—The fact that Hardenburgh owned an interest in the patent to develop which this work was performed, does not necessarily of itself make him a partner of Smith, and liable to the plaintiff.
    But if you find that a partnership agreement actually existed, or that Hardenburgh held himself out or allowed himself to be held out as Smith’s partner, then the plaintiff is entitled to recover.
    Plaintiff’s counsel then duly excepted to such part of the judge’s instruction as applied to the second of the said questions.
    The jury, found a verdict in favor of the defendant. A motion for a new trial was denied.
    The plaintiff appealed from the judgment and order.
    
      Foulke & Malocsay, attorneys, and of counsel for appellant, urged:—I.
    The court erred in charging the jury, that the fact that Hardenburgh owned an interest in the adventure for which this work was performed did not necessarily make Mm a partner of Smith and liable to the plaintiff. “ Interest, in contracts is the right of property which a man has in a thing. In practice, interest means concern, advantage, benefit. Such a relation to the matter in issue as creates a liability to pecuniary gain or loss from the event of the suit” (Bouv. L. Dic. “Interest”). Defendant owning an interest in the patent had a right to share in the profits of the adventure. Such a right is sufficient to constitute one a partner as to third persons, even though expressly agreed that it should not be so as between themselves (Manhattan Brass & Man. Co. v. Sears, 45 N. Y. 799, and authorities cited). “When a party who renders services or advances money to •another for the prosecution of a particular business, looks beyond the personal responsibility of the latter to the creation of an interest in the resulting property or its proceeds, the transaction will be regarded as a partnership” (Vaugh v. Carver, 1 Smith Lead. Cas. pt. II. p. 1311, and authorities cited).
    II. The instruction of the court upon the question put by the jury, had a decided influence on their verdict.
    III. The judgment ought to be reversed, and a new trial ordered.
    
      Conners & Lyman, attorneys, and of counsel for respondent, urged:—I.
    The law is well established that a person who is not a partner by estoppel in pais, is not liable to third persons for the acts of his co-owners unless he and they are really partners inter se (1 Lindley on Part. 3 ed. 44, and cases there cited). But the jury have found that there was no partnership by estoppel, and that no partnership agreement actually existed.
    II. Hardenburgh was simply a co-owner, with Smith, of the patent. This, of itself, did not necessarily make them partners (Exp. Macmillan, 24 L. T. N. S. 
      143 ; Cox v. Hickman, 9 Q. B. If. J3. 47: 1 Li-ndley on ' Part. 3 ed. 40-45).
    III. The judgment and order should be affirmed, with costs.
   By the Court.—Mohell, Ch.j.

It is nqt clear that in the question put by the jury, and in the answer given to it by the court, the same subject was referred to. The jury alluded to an interest in the “adventure,” and the court to an interest in the “patent.” There was some evidence which would seem to have authorized either.

But it is apparent, I think, that the jury desired to be instructed as to the legal effect of an interest in that which constituted the business; whether it was the adventure or the patent, is not, therefore, very material.

The learned justice instructed.the jury that an interest in the patent, to develop which the work was performed, did not necessarily of itself make Hardenburgh a partner.

As a proposition of law, I think the instruction was correct. A mere community of interest was not sufficient to create a partnership (Porter v. McClure, 15Wend. 187; Alger v. Raymond, 7 Bosw. 418, 423 Sage v. Sherman, 2 N. Y. 417, 427). There must also be an agreement to share in the profits and loss.

The part ownership of the defendant in the patent, did not necessarily, make him a partner, and the effect standing by itself, of such evidence, was correctly stated to the jury.

In concluding his instructions the learned justice charged the jury that if they found a partnership actually existed, or the defendant held himself out, or allowed himself to be held out, as a partner, he was liable.

This left it for the jury to determine the only question at issue.

No exception was taken to the charge, and the verdict was supported by the evidence.

I think the judgment and order should be affirmed, with costs.

Freedman, J., concurred.  