#### Wagner, Respondent, vs. Buttles, imp., Appellant.

*December 13, 1912*

January *7, 1913.*

*Master and servant: Contract of hiring: Guaranty of payment: Liability, when terminated: New hiring: Partnership: Landlord and tenant: Letting on shares: Construction of contract.*

1. Where the owner of a farm, to induce a farm hand to work for the tenant, engaged to see that his wages were paid, and such farm hand, having the option to terminate his contract of employment at the end of any month, voluntarily quit work after a few months and was paid in full, his contract and the liability of the landlord upon the guaranty were thereby terminated; and the fact that he returned to work some eight months afterward, at the request of the tenant and with the knowledge of the landlord, did not revive such liability.

2. The fact that nothing was said as to wages at the time of such return, while it might warrant a finding either that it was understood and intended that the servant should receive the same wages as .before or that he was to be paid *quantum meruit,*could not alter the fact that he then went to work under a new contract; and the landlord not having participated in the making of the new contract, no promise on his part to continue the guaranty could be implied.

3.. A partnership was not created between the owner of a farm and one to whom he let the same on shares, although the contract contained provisions for the joint purchase and ownership of live stock for use on the farm, a sharing of certain other expenses, an advisory supervision of the farm work by the owner, and joint ownership of the produce of the farm until sale or division; especially where it was expressly stipulated in the contract that it should not be construed as constituting a partnership and that neither party should have power to contract debts on behalf of the other.

4. To constitute one a partner in an enterprise he must share in the profits as such and not as compensation for services or for the use of the property.

5. Where a farm is let in consideration of a share of the crops, there is no division of profits as such, since the tenant’s share may represent a loss to him and the landlord is not hound to make good any portion of said loss.

6. In construing a contract for working a farm on shares, the intention of the parties as to what their relations should he between themselves should govern when possible.

*669Appeal from a judgment of tbe circuit court for La Crosse county: E. 0. Higbee, Circuit Judge.

*Reversed.*

This action was brought to recover wages alleged to have been earned between June 16, 1908, and October 3, 1910, tbe balance sued for being $361. Tbe defendant *Buttles*was tbe owner of a large farm, and on April 1, 1907, entered into a tbree-year contract or lease with bis codefendant by which tbe latter agreed to work tbe farm on shares. Tbe plaintiff was actually employed by tbe defendant Rand, but claimed that be entered tbe employment under an agreement on tbe part of tbe defendant *Buttles*to see that bis wages were paid. Tbe defendant Rand did not appear in tbe action. Tbe case was submitted to tbe jury on a general verdict. Tbe court instructed tbe jury that unless *Buttles*agreed to pay *Wagner s*wages before tbe latter entered upon bis employment and *Wagner*relied on such promise and extended credit both to Rand and *Buttles,*there could be no recovery against *Buttles.*Tbe court said:

“You must be satisfied upon this issue, by a fair preponderance of tbe evidence, that before *Mr. Wagner*entered into tbe service *Mr. Buttles*promised to pay or in effect see that bis wages were paid for tbe work which be was performing on tbe farm. If you are satisfied by a fair preponderance of tbe evidence that' *Mr. Buttles*did so promise, and be relied upon it and performed work in reliance upon that promise, then be is entitled to recover tbe amount asked for. If you are not so satisfied you should find for tbe defendant.”

Tbe jury returned a verdict for tbe plaintiff for tbe amount claimed, and from a judgment entered on such verdict the defendant appeals.

Tbe cause was submitted for tbe appellant on tbe brief of *George TI. Gordon,*and for tbe respondent on that of *A. E. BleeTcman.*

BaeNes, J.

Prior to April 1, 1907, plaintiff worked for a tenant of the defendant *Buttles.*Rand was about to sue-*670ceed such tenant on April 1st, and requested plaintiff to continue in his employ. Plaintiff testified that he declined the offer of employment until *Buttles*went to him and said: “You are acquainted with the stock on the place, and I want you to stay here if you will and I will see that everything is all right.” .This is the only conversation that ever took place between plaintiff and *Buttles*in reference to employment. After it occurred, according to plaintiff’s evidence, he went to Rand and made a contract of hire with him, hy which Rand agreed to pay him $35 per month during the so-called eight summer months and $25 per month for the four winter months. This month-to-month contract of hire was terminated by the plaintiff on September 1, 1907, when he voluntarily quit work. His wages were paid in full hy Rand. Some eight and one-half months thereafter Rand met the plaintiff and said to him: “We want you to come back there and work for us again.” Pursuant to this request plaintiff returned on June 16, 1908. *Buttles*was not present when Rand requested plaintiff to return to work, and so far as the evidence disclosed he knew nothing whatever about the transaction which led to the second employment. Plaintiff continued to work until October 3, 1910, when Rand quit the farm owing him $361. Plaintiff never received any money from *Buttles*for his work and never made any demand on him for money until this action was commenced, although he knew that Rand and *Buttles*were settling up before Rand left the farm.

Either party had the right to terminate the original contract of employment at the end of any month. We can see no escape from the conclusion that the plaintiff effectually terminated it when he quit work October 1, 1907. If he commenced work under that contract on the strength of *But-tles’s*promise, surely that promise ceased to have any force or effect when plaintiff quit work and was paid 'all that was due him under his contract of hire. If Rand and the plaint*671iff saw fit to enter into a new contract nearly nine months after tbe first one terminated, we are at a loss to see bow *Buttles*can be beld responsible to tbe plaintiff simply because be agreed to assume responsibility for tbe first contract. It is true tbat *Buttles*knew plaintiff bad returned to work on tbe farm, but it is also true tbat under tbe lease or contract by wbicb Rand went into possession of tbe farm be specifically agreed to pay all labor employed in working it. If one person agreed witb a merchant to become responsible for a bill of goods furnished to another while be was performing a certain contract, it would hardly be contended tbat be thereby became liable for a second bill of goods furnished to tbe party while be was performing another contract subsequently made. Tbe illustration is quite analogous to tbe situation in this case. It does not appear tbat anything was said about wages when plaintiff returned to work, but this does not alter tbe fact tbat be went to work under a new contract. Tbe circumstances were such tbat a jury might be warranted in finding tbat tbe parties understood and intended tbat plaintiff was to receive tbe same wages wbicb be bad formerly been paid. If not, plaintiff could recover on *quantum meruit.*But in tbe absence of 'any participation by *Buttles*in tbe making of this second contract, we do not see bow any promise on bis part to continue bis guaranty can be implied. We think tbe record is barren of any evidence to connect *Buttles*witb this second contract. It appears from tbe evidence of tbe plaintiff tbat *Buttles*was anxious to have him continue bis work because of bis acquaintance witb tbe stock, Rand being a new man on tbe farm. After Rand became familiar witb conditions there was no apparent reason why *Buttles*should prefer plaintiff to any other employee.

Some slight evidence was offered on tbe trial tending to show tbat, as to tbe plaintiff, *Buttles*and Rand beld themselves out as partners, and plaintiff argues tbat they are liable to him as such even though they were not partners *inter se.**672It is evident from tbe manner in which the court submitted the case to the jury that it considered the evidence wholly insufficient to sustain a finding that as to- the plaintiff the defendants held themselves out as copartners. The jury 'was told that unless they found that before plaintiff entered the service *Buttles*promised to pay his wages they must return a verdict for the defendant. We think the circuit judge was correct in concluding that there was no evidence tending to show that the defendants held themselves out to the plaintiff as partners.

But one point remains to be considered. If the defendants were partners *inter se*the judgment is right, although recovery was not allowed on such ground. The agreement between the defendants falls within a class which the courts have found it difficult to classify. Beasons can be urged why the contract does not create the relation of landlord and tenant as that relation is defined by the common law. Beasons can also be urged to show that the relation of master and servant did not exist, and why the parties were not partners, and why the defendant Band was not a cropper. Beasons can also be advanced in support of a contention that the contract created each and every of the relations above specified. The New York court has christened this class of agreements “special contracts” *(Taylor v. Bradley,*39 N. Y. 129), and our own court and some others have said that they partake of the nature of “an adventure” which entitles the person taking the farm to participate in the profits derivable therefrom. *James v. James, ante,*p. 78, 137 N. W. 1094, and cases cited. Some courts hold that agreements of the kind here involved make the parties thereto copartners. *Lewis v. Wilkins,*62 N. C. *303; Thornton v. Barber,*48 App. Div. 298, 62 N. Y. Supp. 527; *Leavitt v. Windsor L. & I. Co.*54 Fed. 439; *Bank of Overton v. Thompson,*118 Fed. 798. The North Carolina decision was not followed in the subsequent case of *Day v. Stevens,*88 N. C. 83. Between the dates on which the *673two cases* were decided a statute was passed which in part at least accounts for the change. Oases holding the contrary doctrine, decided by foreign jurisdictions, are: *Cedarberg v. Guernsey,*12 S. Dak. 77, 80 N. W. 159; *Smith v. Schultz,*89 Cal. 526, 26 Pac. 1087; *Brown v. Jaquette,*94 Pa. St. 113; *Williams v. Rogers,*110 Mich. 418, 68 N. W. 240; *Randall v. Ditch,*123 Iowa, 582, 99 N. W. 190; *Blue v. Leathers,*15 Ill. 31; *Shrum v. Simpson,*155 Ind. 160, 57 N. E. 708; *State v. Saunders,*52 S. C. 580, 30 S. E. 616; *Gurr v. Martin,*73 Ga. 528; *Romero v. Dalton,*2 Ariz. 210, 11 Pac. 863; and *Taylor v. Bradley,*39 N. Y. 129. The terms of the contracts involved vary considerably in these cases. Perhaps the one coming nearest to the contract before us is that passed upon in the South Dakota case. However, the contracts are much alike in their main features. In each of them the landowner agrees to permit another to work his land and the landowner receives as compensation for the use of the land a part of the crops raised thereon, and the party working the farm receives the balance as compensation for his services.

Turning to the decisions in our own court: In *Strain v. Gardner,*61 Wis. 174, 21 N. W. 35, it was held that a contract whereby Strain leased her farm to Gardner and was to he paid one third of the crops for its use created the relation of landlord and tenant. Substantially the same kind of an agreement was held to create the relation of landlord and tenant in *Foley v. Sovthwestern L. Co.*94 Wis. 329, 68 N. W. 994.

In *Rowlands v. Voechting,*115 Wis. 352, 91 N. W. 990, the contract was designated a lease, and it was stipulated therein that in lieu of rent the landowner should reserve one half of the income of the farm and the products raised thereon, including proceeds derived from the sale of milk, butter, eggs, etc., and that the tenant should render quarterly accounts of receipts and disbursements and furnish receipts showing the payment of disbursements, and that all expenses except farm *674labor were to be borne equally by tbe parties. Tbis contract was beld to create tbe relation of landlord and tenant. In support of tbis conclusion it was pointed out that tbe words “lease, demise, and let” were used in tbe document; that tbe parties thereto were designated “lessor” and “lessee;” that with certain exceptions tbe premises were placed in tbe exclusive possession of tbe lessee for a definite term; that be bad power to raise such crops as be pleased; and, finally, that tbe lessee was to discharge bis rent not by rendering one half tbe crops *in specie*to tbe landlord, but by paying one half tbe income received by him from tbe sale of tbe produce of tbe farm.

Tbe contract in tbe case before us is a much more elaborate affair than was tbe one involved in tbe *Rowlands Case.*Tbe two instruments are similar in these particulars: Tbe premises in each instance were “leased, demised, and let;” tbe parties were designated “lessor” and “lessee;” tbe leasing was for a definite term; certain expenses were to be borne equally by tbe parties; tbe lessees in each case were required to pay tbe farm labor employed; in each case tbe personal property leased was to be returned; each lessee agreed to pay road taxes, and each agreed to keep tbe buildings in a good state of repair.

Tbe principal points of difference between tbe two leases are,tbe following: In tbe present case the lessor reserved tbe right to erect additional buildings on tbe farm and tbe lessee agreed to haul tbe material therefor free of charge. Any additional live stock purchased for tbe farm was to be jointly paid for and jointly owned. In case it was necessary to buy any provender for tbe live stock, each agreed to pay one half tbe cost. Each agreed to pay one half tbe cost of threshing and corn shredding and of filling the-silo, except tbe lessee was to pay tbe labor cost entering into these items. Tbe lessor reserved tbe right to exercise a general supervision in tbe conduct and carrying on of tbe farm, by conferring and advising with tbe lessee. All tbe produce raised on tbe farm was to be *675tbe joint property of tbe parties and could not be sold without tbe consent of tbe lessor. Tbe money derived from tbe sale of said produce was to be divided equally. If at tbe termination of tbe lease tbe joint property was not disposed of, it was to be equally divided; and, finally, it was stipulated that tbe agreement should in no manner be construed as a co-partnership between tbe parties, and that neither party should have any authority to contract any indebtedness for or on behalf of tbe other.

Tbe real essential points of difference between tbe two leases are four in number. In the instant case there was (1) a provision for tbe joint purchase and ownership of live stock for use on tbe farm; (2) tbe produce raised thereon was to be tbe joint property of tbe parties and could not be disposed of without tbe consent of *Buttles;*(3) *Buttles*reserved tbe right to exercise a general supervision in tbe conduct and carrying on of tbe farm, by conferring and advising with Rand; and (4) the parties agreed that their contract should not be construed as constituting a copartnership, and that neither party could contract debts on behalf of tbe other.

This latter provision is significant, though not conclusive, in determining the relationship of the parties. *Spaulding v. Stubbings,*86 Wis. 255, 56 N. W. 469. In so far as intention is important in determining tbe question, it is clear that tbe paiUes did not intend to form a copartnership.

Tbe latest definition by this court of what constitutes a partnership is found in *Langley v. Sanborn,*135 Wis. 178, 181, 114 N. W. 787, wherein it is said that wherever we have “a community of interest in tbe profits of tbe business *as profits*we have a copartnership. Tbe court pertinently remarks that tbe definition is elusive ánd difficult of application, because wherever it appears that one should share in tbe profits of an enterprise as *compensation*for tbe services, property, or opportunity furnished by him in aid of tbe business, no partnership results. He must share in profits as such and not as *676compensation for services or property, or the parties do not become partners. *Hoile v. York,*27 Wis. 209; *Ford v. Smith,*27 Wis. 261; *Nicholaus v. Thielges,*50 Wis. 491, 7 N. W. 341; *Sohns v. Sloteman,*85 Wis. 113, 55 N. W. 158. There are a multitude of decisions by other courts which hold that an agreement to contribute labor or property in consideration of receiving a part of the profits of some enterprise does not create a partnership where such profits are paid as compensation for the thing contributed. Reference is made to a few of them: *Denny v. Cabot,*6 Met. (47 Mass.) 82; *Nantasket Beach S. Co. v. Shea,*182 Mass. 147, 65 N. E. 57; *Estate of Smythe v. Evans,*209 Ill. 376, 70 N. E. 906; *Thornton v. McDonald,*108 Ga. 3, 33 S. E. 680; *Hanthorn v. Quinn,*42 Oreg. 1, 69 Pac. 817; *Carrell v. Republican P. Co.*61 Neb. 541, 85 N. W. 537; *Austin, N. & Co. v. Neil,*62 N. J. Law, 462, 41 Atl. 834; *Rider v. Hammell,*63 Kan. 733, 66 Pac. 1026; *McDonnell v. Battle House Co.*67 Ala. 90.

We already have three decisions of this court which hold that an agreement to turn over a part of the crop raised in payment of rent is not inconsistent with the relation of landlord and tenant and does not create a copartnership. In other words, the landowner receives as compensation for the use of his farm part of the proceeds thereof. This is logical. The thing divided is not necessarily profits at all as far as the tenant is concerned. His share may have cost him more than it is worth, and the landlord is not called upon to make good any portion of the loss.

Notwithstanding the provision in reference to supervision and joint ownership, there is little to indicate that the money or property received by *Buttles*was not received as compensation for the use of the farm and pergonal property leased to* his co defendant. We see no reason why a tenant may not agree with his landlord to pay as rent a portion of the produce raised and agree to give him title and the right to dispose of *677such share 'and also extend to him the right to give advice, where he has placed in the possession of the tenant not only real estate but also personal property which would depreciate rapidly if not properly cared for. It is difficult to see how the thing to be divided was profits. It is seldom that a contract is prepared that more clearly shows an intent on the part of the parties not to create a partnership, and a further intent that whatever produce or money the lessor received because of what was raised on the farm was given him as compensation for its use.

It is not inherently impossible for the parties to make such an agreement as was made here and still have a situation where the share received by *Buttles*was received as compensation for the use of the farm. This being so, the intention of the parties as to what their relations should be between themselves should govern. 1 Parsons, Cont. (9th ed.) 158. The question of partnership is an important one, and we have not had the benefit of any argument upon it by counsel. It has been discussed because it was thought when the case was under consideration that the question was fairly involved and was a reasonably close one.

*By the Gourt.*— Judgment reversed, and cause remanded with directions to dismiss the complaint.