
    REUBEN W. VAN PELT, Plaintiff and Respondent, v. JOHN M. OTTER, Defendant and Appellant.
    
      [Decided March 5, 1870.]
    Where there is a general verdict, the court will assume that the jury has found it upon all the facts in the case.
    Upon conflicting evidence the court will not disturb a verdict.
    Am instrument, although purporting to be an absolute sale, may be shown by parol to have been intended as a security only.
    Before Monell, Ebeedman, and Spenoeb, JJ.
    The action was to recover for services rendered by the plaintiff, as an attorney at law for the defendant, in prosecuting an action •against the Brevoort Petroleum Company.
    The defendant, after denying the employment of the plaintiff, alleged that the services mentioned in the complaint were rendered by the plaintiff and one John H.Hull, under the firm of Yan Pelt & Hull j that said plaintiff and said Hull were copartners' in the transaction of law business; that the services were not rendered by the plaintiff individually, but by the said law firm of Yan Pelt & Hull, and that Hull should have been joined as a party. The defendant then further alleged payment in full for said services.
    The value of the services were also put in issue.
    The action was tried by Mr. Justice Jones and a jury.
    On the trial, after 'the plaintiff had given evidence of the performance of the services and their value, the defendant, among other things, proved the following receipt, signed by John H. Hull, in the name of Yan Pelt & Hull:
    “John M. Otter v. The Brevoort Petroleum Co.
    “Received, Hew York, March 27,1868, of John M. Otter, plaintiff herein, the sum of five hundred dollars, in full of all claims for services, counsel fees, disbursements, etc., in this action. “Yan Pelt & Hull,
    “ Plaintiff’s attorneys.”
    
      After evidence on either side, as to the partnership, etc., two questions were left to the jury. First. Whether there was an actual partnership existing between Van Pelt and Hull. Second. If there was no actual partnership, whether the defendant settled the matter with Hull, without being informed of such fact, or having reason to believe that no partnership existed. If the jury answered either of these questions in the affirmative, they must give the defendant a verdict.
    The jury found for the plaintiff.
    On the trial the defendant proved the following agreement: , “ John M. Otter v. The Brevoort Petroleum Co.
    “ I hereby promise and agree to give, and hereby assign and set over, to Yan Pelt & Hull, my attorneys in the above action, all over the sum of five thousand six hundred and forty-eight dollars ($5,648), and interest thereon from July 23,1865, for their services in said action, to be paid out of the proceeds, whenever collected. Dated Hew York, August 29, 1865.
    “ John M. Otteb.
    “Yan Pelt & Hull.”
    The defendant objected to evidence that the foregoing assignment or agreement was taken as collateral security only, on the ground that such evidence was in variance of the written agreement. The objection was overruled, and the defendant excepted.
    When the plaintiff rested, the defendant moved for a dismissal of the complaint, on the ground (among others) that Hull had a joint interest in the claim, and should have been made a party plaintiff.
    The motion was overruled, and the defendant excepted.
    A motion, made at Special Term, for a new trial, was denied, and judgment having been entered upon the verdict the defendant appealed from the judgment, and also from the order at Special Term.
    
      Mr. A. J. Vanderpoel for appellant.
    The evidence established that there was a copartnership between the plaintiff and Hull.
    
      This testimony was so overwhelming that it is difficult to see how any two opinions can be entertained on the subject.'
    The statement of the plaintiff, claiming that there was no co-partnership, is based, probably, upon the statement whereby the plaintiff, apparently conceding that Hr. Hull did have an interest in the costs in that case, renounced all claim or interest which he had, or ever had, in the other case.
    On the 21st of March, 1861, Van Pelt and Hull “associated themselves as partners in the practice of the law in all its departments.”
    On the 29th of August, 1865, there was an assigment drawn of the judgment.
    On the 13th of September, 1865, Van Pelt and Hull (composing the firm of Van Pelt & Hull) assigned and set over their right and interest in the judgment to Alexander H. Wallis.
    Mr. Otter was originally the friend, acquaintance, and client of Mr. Hull.
    The services were all rendered in the name of Van Pelt & Hull.
    The consultations relative to bringing the action were between Otter, Hull, and Van Pelt jointly, and the name, Van Pelt & Hull, was attached to all the actions brought in the office.
    The plaintiff, in various conversations after the assignment, conceded that himself and Hull had each a quarter interest in that judgment. Circulars were sent to their respective acquaintances, stating the fact of the formation of the copartnership, with the knowledge of each partner.
    The partnership name, Van Pelt & Hull, was used in all actions brought in the office.
    The lease of the offices was taken in their joint names. If a suit had been commenced against Van Pelt & Hull by Mr. Otter for mismanagement of his case, and Mr. Hull had pleaded that he was a copartner with Mr. Van Pelt, that on the evidence of Mr. Van Pelt alone no jury would have hesitated for a moment to find that Mr. Hull and Mr. Van Pelt were partners.
    The jury were evidently misled by the inchoate agreement or talk between Mr. Hull and Mr. Van Pelt, whereby Mr. Van Pelt claimed that Mr. Hull renounced to him all claims or interest he had in the Otter case, and the court will see that they were also misled by the peculiar course the case took, of the investigation of the difficulties between Mr. Van Pelt and Mr. Hull, instead of the question which really arose as to whether, toward Mr. Otter, those gentlemen were or were not partners. On the other question submitted by the court, as to whether Mr. Otter, when he settled the suit with The Brevoort Petroleum Company, knew there was no partnership, or had reasonable ground for suspecting that .there was none, little, of course, need be said if we are correct in the first point, but we submit that there was no legal evidence from which such a conclusion should be drawn.
    
      Mr. Reuben W. Van Pelt for respondent.
    It was perfectly proper to show that the assignment given by Otter to Van Pelt & Hull was intended as a collateral security, and not as a payment. Such testimony did not even tend to contradict the written instrument, and therefore the defendant’s objections were not well taken (Despard v. Walbridge, 15 N. Y., 374; Tyler v. Strong, 21 Barb., 198; Hodges v. Tennessee Ins. Co., 8 N. Y., 416).
    The motion for a nonsuit was properly denied.
    The action was brought in the name of the party in interest (see. 111 of Code of Procedure). John Henry Hull had no interest in the plaintiff’s claim whatever. He was no partner, and even according to his own testimony had no interest in the plaintiff’s earnings.
    Hull says that he was to have eight hundred dollars per year guaranteed to him, whether there were any profits or not. This does not constitute a partnership. To render one a partner he must share in the profit and loss (Post v. Kimberly, 9 Johns., 470; Porter v. McClure, 15 Wend., 187; Paterson v. Blanchard, 5 N. Y., 186).
    
      To make one a partner he must have a right to share the profits as profits (Ogden v. Astor, 4 Sand., 311).
    One who is employed in a business in a subordinate capacity, and not sharing liability for losses, is not rendered a partner by the fact that he is to receive a portion of the profits in compensation for his services (Bunkle v. Eckhard, 3 N. Y., 132).
    It is immaterial in whose name the service was rendered, so long as it was in fact rendered by plaintiff. He is the party in interest.
    The assignment of Otter of the interest in the judgment to Yan Pelt & Hull, was swept out of existence by the reversal of the judgment, leaving the plaintiff’s claim against Otter the same as if no assignment had been made.
    The assignment by plaintiff and Hull to Wallis, having been procured from the plaintiff by the deception and fraud of Hull, passed no interest, and Wallis having paid nothing for it, but reassigning it for a nominal consideration, Otter can receive no advantage from it, and his attempt now to use it as a defense to this action makes him a particeps oriminis in the fraud of Hull. At all events, the reversal of the judgment cancels and annuls the whole transaction.
    The fact that the suit was conducted in the name of Yan Pelt & Hull is but prima facie evidence that Hull was a copartner, and this presumption is entirely repelled by the positive proof that he was not.
   By the Court:

Monell, J.

We cannot disturb the verdict in this case.

The two main questions submitted to the jury, and determined- by them against the defendant, are conclusive, if there is any evidence to sustain them.

The verdict is general, and we must assume that the jury found that, at the time of the settlement with Hull, the defendant knew or had sufficient notice, or reason to believe, that Hull was not a partner, and had no interest in the claim for services.

At the commencement of the litigation against the Petroleum Company, and until after the decision of the General Term reversing the judgment of the referee, the plaintiff and Hull had held themselves out, as well to the defendant as to the public, as copartners. - But after the appeal had been taken to the Court of Appeals, the plaintiff, as he testified, said to the defendant that he had found it necessary to dismiss Hull from his office. Subsequently, when the defendant was present, the plaintiff said to Hull, “ Why, Hull, you have no interest in this matter; you well know you never hadand Hull replied, * * * now I renounce all possible claim I may have or ever have had in this matter of Hr. Otter.” The settlement with Hull was made after that conversation.

Although contradicted by the defendant and Hull, it was, nevertheless, competent evidence for the jury, and if they believed it, was sufficient to authorize them to find that, previous and at the time of the settlement, the defendant neither knew nor had reason to believe that Hull had any interest in the claim.

With such knowledge his settlement with Hull was wrongful, and is no defense to the plaintiff’s action.

The proof of the value of the services was also conflicting. There were, substantially, only two witnesses who testified, one for and the other against the amount claimed by the plaintiff. Between them the jury have judged.

The motion for a "nonsuit was properly denied. At that stage of the trial, if not afterwards, the questions of partnership and of notice to the defendant were proper questions for the jury, or were, prima facie, sufficient to authorize a recovery by the plaintiff.

The evidence to explain the written agreement was properly admitted. Any instrument, although absolute on its face, may be shown by parol to be a security only (McBurney v. Wellman, 42 Barb., 390; Bryan v. Bowles, 1 Daly, 171; Tibbs v. Morris, 44 Barb., 138; Despard v. Walbridge, 15 N. Y. R., 374; Hodges v. Tenn. Ma. Ins. Co., 8 id., 416).

I am inclined to think that, if I had sat as a juror in this case, I should have hesitated long before agreeing to a verdict for the plaintiff. The evidence on his part was very slight, and in every essential particular distinctly contradicted.

But as it was a proper case for the jury, we cannot disturb their verdict.

Judgment and order should be affirmed, with costs.  