#### James Taylor *v.*Taylor and Justice.

From Craven.

Case of Partnership. If an agreement for a common or special partnership appear to have existed between parties for the purchase of property, with intent to sell the same for the profit of the parties, and no express agreement be proved adjusting the division or share of the profits, the Law extends the concern to all the goods purchased by either of the parties; and the parties are entitled to share the profits, without regard to the payments or advances made by either for the purpose of effecting the purchase, if there be no contract as to the amount of the advances to be made by them respectively.

The bill charged, that Complainant, in January preceding the filing thereof, had introduced to Defendants, merchants and copartners in trade, in the town of New-bern, under the firm and style of *“*Taylor & Justice,” a Capt. John Thomas and a Capt. Emanuel Roderiquc, whose vessels had lately before been cast away and wrecked at 0 or acock Inlet, requesting them to aid those gentlemen in the transaction of their business at the custom-house, and observing that as there was a probability that some advantageous purchases might be made of the vessels or cargoes, the Complainant with Taylor & Justice should be mutually and equally concerned in the purchases, that is, that Taylor & Justice should be interested one-half and Complainant the other half in all the purchases to be made, and in all the profits and emoluments, of whatever kind, that should thence be derived. That Taylor & Justice acceded to this proposition, and in order to enable Complainant more readily and beneficially to go on with the proposed speculation, it was agreed that he, instead of paying off the sum of £94 8s. *7d.*which he owed Taylor & Justice on a running, account, should pass his note for the same, and invest the-amount thereof, and also the amount of the duties on the said Thomas’s cargo, in such advantageous purchases *71as might offer at Thomas’s sale, (the Complainant being the Surveyor of the Port of Beacon Island.) That in consequence of this agreement, Complainant went to Ocracock, attended the sale, made very advantageous purchases to the amount of £515, in rum, .sugar and molasses, and about the first of February returned to New-bern with the articles so purchased, which he delivered to Taylor & Justice, to be sold for his and their benefit, and also the sum of £294 in cash, making in the whole the sum of £809, the exact amount of duties secured on. the said Thomas’s cargo. That for these duties Taylor & Justice had given their bond at the custom-house, payable in three and six months, and in consequence of the aforesaid agreement, Complainant was responsible for a moiety thereof. That at the same time, he put into the possession of Taylor & Justice, about forty boxes of Spanish segare, and three or four hundred bundles of Spanish tobacco, which he had detained in consequence of the duties thereon not being paid or secured *•,*but that shortly afterwards, tire duties on these articles and on the whole of Capt. Roderique’s cargo were secured, and the owners of these articles being introduced by Complainant to Taylor & Justice, Complainant consulted with Taylor & Justice about the purchase of them, and assisted them to make the purchase j that the amount of the duties on these articles, viz. £92, was deducted, and. the residue paid, partly in money and partly in goods furnished by Taylor & Justice. That the purchase of the segars and tobacco was made, as well as the former purchases and those intended to be made thereafter, equally on account of Complainant and of Taylor & Justice, and in pursuance of the agreement before set forth.

That about this time, Capt. Roderique having concluded to sell his cargo, and being desirous of employing Complainant to manage the business, as his agent and as agent for all concerned, and allow him a regular commission for the agency, proposed to Complainant to undertake it *t*he declined, and recommended to this agency *72Taylor & Justice, promising .Capt. Roderique to give them his assistance. Complainant, on behalf of .Capt. Roderique, applied to Taylor, one of the partners, offered his aid and expressly stipulated for an equal division of the commissions and of all the profits and emolument® that might arise from the transaction. This offer and stipulation being acceded to, the agency was undertaken, and Complainant charged tiiat he accordingly did aid in the agency. That Taylor, one of the partners, proceeded with Complainant and Capt. Roderique. to Beacon Isl- and, to attend the sales of Capt. Roderique’s brig and cargo, and in pursuance of the agreement entered into by himself and partner with Complainant, made purchases to the amount of 02000, or thereabouts, and took the property purchased into possession. That having returned to Newbern with a considerable/ part of the property purchased, they found an agent of the owners, to whom Complainant explained all that had been do/ie, and paid to him ,§500. That Taylor and Justice paid the residue, retaining 0191 for commissions.

That knowing large profits had accrued from the speculation, which profits were entirely in the hands of Taylor & Justice, Complainant applied to them for an account thereof, and payment of his share : and that Taylor & Justice denied his right to *an equal participation*of the profits, saying that Complainant had not made *equal advances*with them, and was entitled to profits only in proportion to the advances which he had made, and insisting that his running account for which be had given liis note as aforesaid, should be deducted from his advances, and that they should be credited exc iusively by the expenses of the speculation out of the profits realised, altliough the expenses were not then paid. That they then agreed to submit the matter m controversy between them to the arbitrament and award of John Devereux and John Harvey, merchants of Newbern $ and in pursuance of this agreement, they submitted to the said arbitrators, <c Whether Complainant’s advances had been *73such as to entitle him to a full moiety of all the profits arising from the purchases and speculations before set forth and foe arbitrators, after hearing the allegations of the parties, and examining their documents, were of opinion that Complainant was so entitled. The bill then charged, that Complainant had often applied to Taylor & Justice for a settlement of the account, and payment of his share of the profits, and they had refused to make such settlement and payment. The bill prayed lor an account and relief, &c.

The answer of the Defendants admitted, that Complainant proposed to them that they should become bound at the custom-house, for the duties upon the cargoes of the vessels, and that ho and they should jointly purchase at the sale of the wrecked property, and equally divide the profits arising therefrom : but they denied that they acceded to the proposition of an equal concern and division of profits in whatever purchases might be made beyond the sum of duties secured. They admitted, that to the amount of the duties, Complainant was to be entitled to an equal share of the piofiis, but alleged that in case the purchases exceeded the amount of duties, the benefit was to belong exclusively to that party by whom the advances for such purchases were made; and that in cases of purchases on their joint account, the property should be plac -d in their hands, and the disposal thereof be wholly under their direction : and that whenever they should supply the funds to make purchases at said sales beyond the amount of duties scoured, and should not themselves attend the sales, but leave the management of the business to Complainant, be was to be entitled to an equal part of the profits arising from the purchase.» as a compensation for his services in making the purchases : that if, when they or cither of them attended a sale, and intended to purchase beyond the amount of the duties secured, Complainant thought proper to meet them with equal funds, he was to share equally in the *74profits of such purchase ; otherwise, in proportion to the sum which he should advance.

As to the running account of Defendant for .£94 8s* *7d.*Defendants answered, that the same had been long due, and they were pressing Complainant for payment: but he, alleging that he wished to apply some money in purchases for his own benefit at the said sales, they proposed, and Complainant agreed to it, that Complainant should retain the sum of £94 8s. *7d.*and give Ihem, not his note, but an accountable receipt for that sum ,* that he should invest the money in purchases at the said sales, and in consideration of his doing the business and making the payment at the sale, he should be entitled to half the profits on the purchase made with that sum; and this was done, not in consequence of a general agreement of equal concern in all purchases at the contemplated sales, but merely to close Complainant’s account.

They stated, that they gave Complainant instructions in writing, at the first sale, to invest the amount of Thomas’s duties in purchases, pointing out the articles which he should buy and the prices he might venture to give. At this time it was not known that Roderique’s vessel and cargo would be sold $ but expecting that a sale might take place, Complainant was instructed to invest the amount of Roderique’s duties in such purchases ; and they informed him that the profits arising from his purchases to the amount of the duties, should be equally divided between them and him.

They admitted, that upon Complainant’s return to Ncwbem, he delivered to them the rum, sugar and molasses charged in the bill, but they denied that he paid them S394 in cash, or any other sum. Capt. Thomas paid this money, which, with the articles purchased by Complainant, made up the amount of duties which Capt. Thomas owed, and for which they had given their bond at the custom-house *;*and upon his making this payment, they gave him a discharge. They denied that *75there was any agreement that Complainant should be responsible for one-half of the duties.

They admitted, that in February there were deposited with them, under the inspection of Complainant, Capt. Roderique and his seamen, thirty-nine boxes of segars, belonging to the Captain, and thirty-one boxes and one bocket of segars, and four bags of tobacco, belonging to the seamen. On the 11th of that month, the seamen called at their store and offered to sell their segars and tobacco. They were foreigners, and there was a difficulty in understanding them. Complainant came in and acted as interpreter, and a bargain was concluded. They denied that Complainant was entitled to any participation in that purchase j that he either introduced the seamen to them or had any agency in making the bargain, except in acting as interpreter. That neither ho nor they was precluded, by any agreement between them, from employing any sum which either might think proper to advance, in purchases of wrecked property, while there remained sufficient to invest the amount of duties on their joint account 5 and Complainant purchased for his own use, of Capt, Roderique, articles to the amount of ¡§103.

They admitted their agency for Capt. Roderique, but expressly denied any agreement that Complainant was to share the commissions. They agreed that in consideration of his having recommended them to the agency, he should have the profits which would arise from purchases to the amount of the commissions. They admitted the purchases at Capt. Roderique’s sale, the delivery of the goods in Newbern, the arrival there of the agent of the owners, the settlement with him, the amount of commissions received, and the payment to them of §500 by Complainant.

As to .the award charged in the bill, the Defendants gave a history of it, and insisted that it was not in any way binding on them.

*76Upon the bearing’ of this case, the following issues were submitted to a Jury, to wit:

1. Was there an agreement between the Complainant and Defendants, as to the division of the profits to arise from the purchase and sale of the articles in Complainant’s bill set forth : and what was that agreement?

2. Was there any agreement as to the division of the commissions on the agency for Roderiquc’s *vessel;*and what was that agreement ?

3. Was there any award which settles the principles on which a division of profits should be *made;*and what was that award ? ^

The Jury found that there was an agreement between the Complainant and Defendants as to the division of the profits mentioned in the first issue j and that agreement was, that the said profits should be equally divided between the Complainant on the one part, and the Defendants on the other. They further found there was no agreement as to the commissions mentioned in the second issue *;*and that there was no such award as is mentioned in the third issue.

The presiding Judge, in his charge to the Jury, said, ■ that if an agreement for a common or special partnership appeared to have existed between the parties for the purchase of any property at the sales set forth in the bill and answer, with intint to sell the same for the profits of the parties, and no express agreement was proved, adjusting the division or share of the profits, the Law was, that the concern extended to all the goods purchased by one of the parties at the time of the sales, and that the parties were entitled equally to share the profits, without regard to the payments or advances made *by*either of them for the purpose of effecting the purchase, there being no contract as to the amount of the advances to be made respectively. A rule for a new trial was obtained, on the ground that the charge Was incorrect in Law. The rule was sent to this Court j find

*77By thb Cotiut.

The presiding Judge laid down the Law correctly iu his charge to the Jury.’ The rule must be discharged.