
    Bowyer v. Anderson.
    March, 1831.
    (Absent Coalter, J.)
    Partnership — What Constitutes — Contingent Participation in Profits — Case at Bar. — B. owner of a public ferry, leases It to F. two years, In consideration Qf $1000 paid him by F. in cash; and it is agreed between the parties, that if the neat profits of the ferry do not yield F. $2000 within the two years, P. shall hold over the term, until the profits yield the $2000, and if the profits give more than $2000 within two years, the surplus shall be equally divided between them: Held, this contract does not constitute a partnership between B. and P. in the ferry, and B. is not liable for losses by negligence at the ferry, during the term of P. ’s tenancy thereof.
    Case, in the circuit court of Greenbrier, brought by Anderson against Bowyer, as the owner and keeper of a public ferry at the Cliffs on New River, to recover damages for the loss of a horse and of a parcel of salt, put into Bowyer’s ferry boat, to be safely transported across the river for the toll established by law, which the declaration charged to have been drowned and lost by reason of the insufficiency of the boat, and the negligence of Bowyer and his servants. Plea, not guilty. Verdict and judgment for Anderson, for 325 dollars damages.
    At the trial, Bowyer, to prove that he was not liable to make good the loss, offered in evidence an agreement between him and one Feamster ; whereby, in consideration of *1000 dollars cash, paid by Feamster to Bowyer, he let and leased the ferry to Feamster, for the term of two years, to commence nine months after the date of the agreement, at which time possession was to be given to Feamster ; and Bowyer agreed to furnish Feamster good and sufficient boats during the term, a hand to assist in case of high waters or necessity, and board &c. for one ferryman to be employed by Feamster, for which the latter was to pay him 20 dollars per annum : and it was agreed between the parties, that if, in consequence of Feamster’s expenses in hiring and keeping a ferryman, and the damages he might sustain by accidents, Feamster should not make the full sum of 2000 dollars by the profits of the ferry, within the term of two years, then he should remain, and keep full possession of the boats and ferry, from the expiration of that term, until he should make the intire sum of 2000 dollars ; but if the money collected during the said term should amount to more thari 2000 dollars, the surplus should be equally divided- between the L'parties. It was during the term of two years, that the injury happened of which Anderson complained. Whereupon, the court instructed the jury, that the agreement between Bowyer and Feamster, proved a partnership between them in the profits of the ferry, at the time the injury happened to Anderson ; and that Bowyer (and Feamster also) was liable to him for the loss he had sustained. To this opinion, Bowyer filed exceptions ; and appealed from the judgment to this court.
    The cause was argued here, by Johnson for the appellant, and Stanard for the appellee.
    The question was, upon the construction and effect of tlie agreement between Bowyer and Peamster, whether that constituted a partnership between them in the ferry and its profits ?
    
      
      On matters pertaining- to partnership, see mono-graphic note on “Partnership” appended to Scott v. Trent, 1 wash. 77.
    
   CARR, J.

“Partnership,” we are told, “is a voluntary contract between two or more persons, for joining- together their money, goods, labour and skill, or either or all of them, *upon an agreement that the gain or loss shall be proportionally divided between them, and having for its object, the advancement and protection of fair and open trade.” Let us examine the agreement before us, and see how it comports with this definition. The first part of it, certainly, imports a lease of the ferry for two years, in consideration of 1000 dollars paid by the lessee to the lessor before the commencement of the lease, with an agreement on the part of the lessor, to furnish good and sufficient boats, a hand to assist on extraordinary occasions, and board &c. for the ferryman to be employed by the lessee, at the rate of 20 dollars a year. And if the agreement had stopt there, all must have agreed, that it had not a single feature of a partnership. The doubt arises upon the stipulations contained in the sequel of the agreement. Do they- change the character of the contract, and convert it from a contract of lease into one of copartnery ? Where is the community of interest, the community of profits, the community of possession, in the social subject ? The first part of the contract expressly stated, that Bowyer leased the ferry to Peamster, for the full term of two years, to commence nine months after the date of the contract, when possession was to be given : that surely meant a several exclusive tenancy in Peamster, not that joint tenancy which partners have. The latter part of the contract nowise changed that feature of it: it not only contemplated the continuance of Peamster’s possession for two years, but expressly stated, that if within that term he should not receive 2000 dollars, he should remain, and keep full possession, until he should make that intire sum. So far, there was certainly nothing social, either as to possession or profits. But it was added, that if during the two years, Peamster should receive more than 2000 dollars, the surplus should be divided equally between him and Bowyer : and this, it was contended, gave that participation in the profits, which made it a partnership. I cannot think so. It is a participation purely contingent, and seems to have been thrown in simply as some counterpoise to the provision which *enabled Peamster to hold beyond the two years, if he should not within that time make the 2000 dollars. In 3 Kent’s comm. 8, we find it laid down upon authority, that “the contract, must be for the common benefit of all the parties to the association, and though the shares need not be equal, yet, as a general rule,' all must partake Of the profit, in some rateable proportion, and that proportion, as well as the mode of conducting the business, may be modified and regulated by private agreement, at the pleasure of the parties.” Upon every view I can take of the subject, there was no partnership here, and consequently, .no right in the plaintiff to recover of Bowyer for the default of Peamster.

There is a feature in this contract between Bowyer and Peamster, which, it seems to me, may go a good way in explaining its nature. The consideration of the agreement was 1000 dollars, advanced and paid by Peam-ster at its date, though his lease was not to commence till nine months after. Ren1 s are the fruits, the returns, of land ; and it is very rarely that we see them paid in advance. Is it not natural to suppose, that Bowyer, being pressed for the immediate use of the money, fell upon this scheme for raising it, by anticipating the profits of his ferry; and that Peamster, seeing his necessity, took advantage of it, to insist on holding the lease, till he should receive from it double the sum advanced ? It was thought two years would give this sum : but Peamster was determined to make assurance doubly sure, and therefore, had the provision inserted, that, if from the expenses incurred, or damages from accidents, he should not receive 2000 dollars, within the two years, he should hold on till he should receive that sum : and then Bowyer added, that if during the two years, more than 2000 dollars should be received, the surplus should be divided. This maybe called conjecture ; but it seems to me, the natural and probable explanation of the transaction ; and I mention it as another consideration to shew that no partnership adventure was intended.

*BROOKE, P.

There may be a partnership in a ferry ; hut, as a ferry is not ordinarily the subject of partnership and trade; the terms of the contract by which it is made so, ought to be more clear than in cases in which the subject is one of ordinary trade and partnership. It is not uncommon in farming leases, which are somewhat analogous to a lease of a ferry, that the rent is stipulated to be paid in a certain portion of the profits ; yet no partnership is inferred from that circumstance. The lessor is not subjected to any claim for the expenses of cultivation &c. In the contract before us, the consideration paid by Teamster was the 1000 dollars : no partnership account was necessary to ascertain that. The stipulation in the lease, that if, in the event, he received more than 2000 dollars, within the term of two years, the surplus profits were to be divided between the parties, was entirely contingent; and the interest of Bowyer in them could not be considered as making him a partner in the whole trade of the ferry. It was only intended by the parties, to apportion the rent more nearly to the value of the ferry, in an event which, for aught that appears, never happened. A communion of interest in the profits and loss of a trade, is essential to a partnership. Coope v. Eyre, 1 Hen. Black. 37. There was no such communion of interest in this case. Peamster had paid his 1000 dollars in advance ; and was to receive 2000 dollars in the profits of the ferry after deducting loss by accidents, such as freshes &c. and if not in two years, he was to hold over until he did receive that sum in those profits. Bowyer had no common interest in the profits ; he was not to receive a cent of íhem. I think the circuit court erred in its instructions to the jury.

CABEBL, J., concurred.

GREEN, J.,

dissented. He said, I think this is a case of partnership. The contract in substance and effect was this: Bowyer agreed to put in his ferry, to keep up good and sufficient boats at his own expense, to furnish a hand to assist *on extraordinary occasions, and board &c. for a ferryman, to be employed by Feamster, at 20 dollars per annum : Feamster was to employ a ferryman to work the boats, and to superintend the ferry himself ; and each was to receive a moiety of the profits (after deducting the expenses, namely, the wages of the ferryman, his board &c. and damages from accidents) for two years, or till the profits should amount to 2000 dollars, of which Bowyer’s moiety was paid him in advance : and if more than 2000 dollars accrued within the two years, the parties were to divide the surplus. And the lease was given to Feamster for two years, as a security for Bowyer’s performance of the contract on his part, in consequence of Feamster’s advance of the 1000 dollars to him, and for no other reason.

Judgment reversed, and cause remanded to the circuit court for a new trial to be had, with directions that no such instruction should be given &c.  