#### *Willis Benson, vs. M’Bee, &*Alexander, J *Richardson vs. The Same, J. Hawkins, vs. The Same, E. Hawkins vs. The Same, S. Turner, vs. The Same.*

"Where grain, received at a mill as toll, was mixed up, and became the subject of traf fic, between the defendants, each being part owner, and interested in the proceeds of the sale. It was held that they were parties, in that particular business.

*Before*Butler, J., *Greenville*— Extra *Court, August,*1841.

This was an action of assumpsit for grain sold and delivered to the defendants, as partners. The grain (wheat) was delivered to Alexander alone; hut it was alleged on the part of the plaintiff', that it was delivered to him while he had charge of McBee’s mill, and as the partner of Mc-Bee. The whole question in the case was, *whether Alexander bought grain on account of himself and McBee, as partners, or exclusively on his individual accountfl*This depended very much on the course of dealing with . the public, and the fact, whether McBee had .shared in the profits of wheat bought by, and delivered to Alexander. It appeared by articles of agreement entered into by' McBee and one Michael, dated 20th June, 1829, that the latter was to take charge of McBee’s mill on Reedy River, near Green-ville Court House, and was to have one-third of the tolls as a compensation for his services. The agreement contained a clause to the effect that Michael was at liberty to manufacture the wheat, arising from the tolls, into flour, and to sell it on account of McBée and Michael; the former to have two-thirds of the nett profits, and the latter one third, and both to be liable for bad debts. (See the agreement, which is not before me.) This agreement continued in force till April, 1830, when Michael quit the mill, alleging that he could make nothing by it; and Alexander took charge of it, under the same agreement, with a memorandum endorsed thereon, to this effect: that the said agreement was mainly to govern the parties. Some short time after, Alexander took charge of the mill, which was enlarged, by the addition of another mill-house. He commenced the purchase of grain, to raise and sell pork, <fec. (fee. For grain thus bought, he would give his indi*92vidual note, at some times, and at others would settle for it , by giving credit to customers at the mill, on their accounts for flour, bran and pork sold to them. These accounts against such persons were kept in books, marked the books of McBee A Alexander. These accounts, thus kept against the dealers at the mill, were readjusted and settled in a book, purporting to be one between McBee A Alexander themselves. The books were kept with some complication and confusion, and will again, as they were on the trial, be referred to by counsel. They were called for, under notice by the plaintiff, and were relied on to shew that McBee had received, in his settlement with Alexander, a share of the profits of pork, beef and flour, sold by Alexander, and that he had, thereby, recognized Alexander as his general partner in all the transactions of the mill. These books, and the following evidence, will put the Court in possession of the case.

Edmund Waddill said he had known the mill for many years — Alexander kept it for fourteen years — quit it at his failure, which occurred suddenly, some short time before the commencement of this action — has seen the parties settle frequently — McBee required an annual settlement of their accounts, and on such settlement, he would take two thirds, and give Alexander one third of the profits — • the mill ground a great deal of wheat, and had many hired hands employed about it. A co-partnership wagon and team were attached to the mill — it did the hauling for the mill. Besides the wheat arising from tolls, a great deal of other wheat was bought at the mill, which, as well as the toll wheat, was ground up into flour. This witness said that this was what was called a merchant mill, and that he thought it was the custom of such a mill to buy grain and manufacture it into flour, as well as to take toll. He said he did not know that McBee had ever purchased grain, or had sanctioned the contracts of Alexander for grain purchased by him.

Peter G. Gerard and T. Walker, Esqrs. and others, said they had paid off accounts for flour, bran, Ac., which were presented to them in the name of McBee A Alexander. Gerard said he had paid such an account to McBee since the failure of Alexander. Walker said that McBee was *93an attentive man to business, and lives not far from the mill.

Dr. Rabe said he wanted to buy seed wheat — forty bushels — and spoke to Alexander, saying he wanted Benson’s wheat, as it had taken the prize. Alexander consented to let him have it. Witness called, but Alexander said that wheat was gone, but he would get more of the same kind. Witness called again, and got forty bushels of wheat, which he understood to be Benson’s wheat. He gave his note, payable to McBee *<&*Alexander — he was sued — and he paid the amount of the judgment to Luther McBee, son of defendant. A judgment on a note given by Felix Green to McBee *&*Alexander, was produced in evidence.

Samuel G. McClanahan once saw McBee . holding his horse, and in conversation with Alexander, near the house of the latter. As witness approached, heard McBee say, I want you to borrow or get money for me; you can do it as well as I can. — McBee was then going to his Factory, and after making the remark, rode off. He was about fifteen feet off, when Alexander said to witness, can you let us have some money'? or can you lend me some money'? and said, you can get my note, or McBee will give his note, or we will give our note; it is just as you please. Ultimately, witness let Alexander have $260, and took his individual note for it. That note has been frequently renewed. Once paid an account at mill for wheat, made out in the name of McBee *&*Alexander — at another time he got some seed wheat, which was in hogshead, and which Alexander said was Benson’s wheat. The price of the wheat, twenty bushels, was credited on Alexander’s note. — Rabe’s servant was at mill, and got wheat at the same time, and of the same kind he did. Before the conversation above alluded to, which was four years ago, he had frequently let Alexander have money. Witness sold Alexander Rail Road stock.

John Hawkins says he was in the habit of carrying his wheat to the mill, and selling it to Alexander — Alexander owed him, at one time, as much as $2000 — he would frequently have settlements with Alexander, when he (the ■witness) would produce his book, kept by his son, (the *94witness being illiterate) and Alexander would produce his book — the entries corresponded, and setlements were made by these books — that book looked like that produced in Court. (It was alleged by plaintiff that this was a different book from that in Court, and should be produced; but it was denied that there was any such separate book as that described by witness.)

Samuel Williams said that he drove wagon for his father, and hauled wheat from Benson’s to mill.

Enos Williams said he was the regular wagoner of the patnership wagon and team — -he was employed by Alexander, while he had charge of the mill, and since his failures he has been employed by McBee. For four years witness was employed by Alexander; during that time he hauled a good deal of flour to Augusta — would sell it, and pay over the proceeds of sale to Alexander. Sometimes he would haul other articles for different persons — once went to Tennessee with yarn, and other goods. The barrels of flour, which he hauled to Augusta, were marked *Reedy River*Mill, *Greenville”*— this, the only mark. When he sold flour, he did so in the name of Alexander — once stored some in his name — never had conversation with McBee on the subject — got all his instructions from Alexander. Alexander charged McBee with two-thirds of the expense of trip — would charge him with two-thirds of corn, purchased with Alexander’s money, or furnished by Alexander.

The following receipts and due bills were offered to establish the bill of particulars:

Receipt to Benson of 143 bushels of grain, delivered at mill, in March, 1840, signed and certified by Alexander to be true.

Due bill. Due Willis Benson, on settlement, $200, dated in 1837. (signed) Alexander.

Another due bill for $38, signed by same, dated 2d. Feb. 1839.

William Choice was the Attorney of McBee <fe Alexander — collected a note given by Limestone-Springs Company, payable to McBee *&*Alexander — has paid accounts for pork, wheat, (fee. made out in the name of McBee (fe Alexander. Before Alexander’s failure, which was sud*95den ly, and while McBee was in Charleston, his credit was very good — the general impression was, that he was making money, and in thriving circumstances. Alexander gave $1500 for shares in the Rail Road Company; they were sold at $140. — He lost, while he had the mill, a woman and a hoy. The witness said he had a note in his hand, payable to Hawkins, by Alexander, when it was presented for payment, Alexander said when McBee returned he would put his name to the note, which McBee, however, refused to do.

Jeremiah Cleveland sold corn to Alexander, who said part was for himself and part for McBee. Alexander gave his own note, and paid it. This corn was not Hawkins.’

John Hawkins says the corn sold by Cleveland was delivered to McBee’s driver, and in McBee’s own wagon.

W. Blasingame, the clerk, was once present when Alexander lent Col. Ware $12P0. Cleveland got the note that was given for the money, and recovered judgment on it.

Jefferson Choice. McBee applied to him to get $500 of money which he had, belonging to William Choice. Mc-Bee said at the time, that he would have no occasion to borrow, if he could get the $800 coming to him out of the $1200 Ware note.

Defence.

Peter Cauble says be always understood that Alexander kept mill for one third of the toll grain, and that Mc-Bee was no further connected with Alexander than in the tolls. Witness, a blacksmith, did work for the mill, and charged the work to McBee. Witness has sold wheat to Alexander, and took his individual note. Both witness and McBee bought pork of, and sold hogs to Alexander. Witness always looked to Alexondér for pay; when he sold wheat to him.

Alexander has sustained the following losses: — by death of boy, worth $1200; by death of girl, worth $800. He (Alexander) had in his employment a man named Charles who kept the keys. Charles’ character was bad — he was a thief. — Heard Alexander, in a bragging way, say he was making money at the mill — Michael left it, because he said he was sinking money.

*96Benajah Dunham is the owner of a mill in Anderson. When he employed his miller, who was from North Carolina, he took him on the same terms that McBee employed his miller — had heard of the agreement, and sent for it to look at, and afterwards drew up an agreement of the same purport — understood before that McBee’s miller was getting one third of the tolls. It is not generally understood that a miller of a merchant’s mill has a right to purchase grain and sell flour manufactured from it. The owner of a mill may, and sometimes does, purchase wheat to be ground up into flour for sale.

F. H. Macleod was in the habit of giving Alexander money to buy wheat for him, with instructions to have it ground up into flour — knows that Benson sent wheat to mill since Alexander’s failure. Witness got some from Alexander, and saw Mr. Perry get some of the same.

Benjamin F. Horton has given Alexander money to buy wheat for him — generally would get about thirty bushels a year. He worked for McBee, and would pay his mill account by the account which he held against McBee.

John M. Roberts is one of the trustees of Alexander’s creditors. Benson filed his demand, but has, as yet, received no part of it. Benson told witness to keep the money, when witness proposed to pay it over to him. He has paid several creditors 33 cents in the dollar.

Richard Ward, the overseer of McBee, knew that Alexander cut hay in McBee’s meadow — all the hay he has ever had at mill, he thinks, came from the meadow.

Hardin Roberts keeps McBee’s saw mill, and makes out accounts in the name of McBee *&*Roberts. Witness gets one third of the proceeds of plank sold, and McBee keeps the mill in repair.

Wm. Jacobs says his account was in note, given by Alexander, for money lent, corn sold to feed horses, (fee. Alexander told him that he had let McBee have $3000 in gold and silver, as paper money would not answer; the exchance would be lost by such way, (fee.

Samuel Bigham knows that McBee paid for machinery at the North — some paid for six years ago, and some two or three years ago — paid for some in gold, three years ago. Witness was a partner of McBee in a Cotton Facto*97ry, and gave notes in the name of McBee, Allen *&*Co. McBee has a gold mine in North Carolina.

*Evidence in Reply.*

John Richardson says he held notes against Alexander; on one occasion appliéd for money ; Alexander paid him some in gold, and upon witness remarking that it was pretty money, Alexander said yes, he did not let it always go out; that he had up stairs a peck of such money. The witness had delivered at mill, wheat and barrels, and took Alexander’s individual note, thinking it abundantly good, though he thought that McBee was in copartnership in all the mill business.

Various accounts were produced, in which money had been paid to Alexander, on accounts due Alexander *&*McBee.

The case was submitted to the jury, under instructions on the general principles of the law applicable to copart-nerships. I held that, under the articles of agreement, McBee was a partner in the manufacture and sale of flour, arising from toll-wheat; that he had permitted himself to be held out as a partner, to that extent at least, by the manner of dealing with the public. Accounts were made, and suits brought in the name of McBee *&*Alexander. I further said,- that strangers to the subsisting contract, between McBee *&*Alexander, might hold McBee liable, as a partner, for grain delivered at the mill, when there was nothing to show that Alexander received and bought the grain on his individual account. In many instances, persons who had given their notes to McBee *<&*Alexander, or who had accounts standing against them for flour, bran, <fcc., paid them off by the sale and delivery of grain at the mill. From this mode of dealing, such persons might well regard Alexander as acting within the scope of the copartnership between himself and McBee, upon the ground that the latter had made him his agent to make such contracts, and to transact the general business about the mill, on the faith of his name. This course of dealing was calculated to deceive tile public. Notwithstanding it may have been the design of the parties to limit their partnership to the tolls, still it was competent for persons *98to contract with Alexander, as to all matters not strictly embraced in the business of the firm. They could make him their agent to buy and sell wheat for them, or to da any thing else with which they believed McBee was not interested. The rights of such persons could not, however, be destroyed by such a mode of trading, if they could show that McBee, in fact, shared the profits of such transactions. And it seemed to me, that was the point of view in which this case should be regarded; for one may subject himself to the liability of a partner, either by permitting another to use his name, where, in fact, he was not interested, or where his name is not used, by sharing the profits of the concern, under an agreement, expressly, or by implication, existing between the parties. This presented a question of fact: Did the plaintiff deal with Alexander, in selling him his wheat, as the partner of McBee, from an honest belief that McBee had permitted Alexander to use his name *1*or, if not, had he shown that McBee liad shared in the profits of wheat purchased by Alexander'? I was strongly inclined to believe that Benson had sold the wheat to Alexander, on his individual responsibility. By his own showing, he had taken notes signed alone by Alexander, and had filed his demand against Alexander, with a view to receive his share of the proceeds of his property. If this was so, I stated to the jury, that the case would be reduced to this simple point: Had McBee shared in the profits of wheat bought, and flour sold, manufactured from such wheat ? There was no positive evidence on the point; it was a subject of inference, from the course of dealing in other matters. For instance, it was said, and I suppose established by evidence, that-McBee had participated in the sale of beeves and pork, and some other articles, for Avhich there was no express stipulation in the original agreement. The agreement limits the business of the concern to the flour manufactured from toll-corn. But the ground taken was, that in the progress of their business, the parties had enlarged the sphere of their partnership operations, and had extended them to the purchase and sale of all articles bought at, or arising from the mill. The books were mainly relied, on to establish this. Whether this was the case, or not, was a question of fact, which I left to the jury.

*99The jury found for the plaintiff, $143, which was as much as I think he proved of his demand.

*Grounds of Appeal.*

1. Because his Honor, Judge Butler, instructed the jury that, by the articles of agreement, the defendants were partners.

2. Because his Honor instructed the jury, that if McBee received the profits of beef, pork, or other articles, sold by Alexander, they might presume he was a partner in the purchase and sale of grain.

3. Because there was no evidence that McBee participated in the profits of any grain, or other commodity, purchased and sold by Alexander, and the verdict is unsupported by evidence.

[These several actions were tried before Evans, X, at Greenville, Pall Term, 1841, and one depending upon the same state of facts, before Butlee, X, at the same place, August Term, 1841.

In order that the opinion of the Appeal Court may be more fully understood, the reports of their Honors, *on the*trials below, are given entire.]

*Before*Evans, J.'

These actions were all founded on contracts made with Alexander for the sale of grain, as wheat, corn, oats and fodder. In all of them, the main question was, whether there was a co-partnership between the defendants. Mc-Bee owned, at Greenville, a large mill, employed in general, as a toll-mill. For many years, before 1830, one Michael had been the miller. The agreement between him and McBee was, that he was to attend the mill, and receive for his services one-third of the toll, and McBee two thirds. Michael to sell McBee’s toll, and if he chose, he could sell his own share along with McBee’s; and if he did, they were to share the loss. Michael, besides the one-third of the toll, was to have the screenings. In 1830, Alexander succeeded Michael, and by an endorsement on the agreement of Michael, *it*was stipulated, .the same contract, until another should be made, was to govern between Alexander and McBee. It appeared from the accounts rendered, and the books kept in the name of Me-*100Bee *&*Alexander, that various articles were charged as sold to customers, such as pork, pigs, cattle, flour, wheat, corn, salt, molasses and screenings; and that several customers were credited with corn, wheat, rye and fodder, in the mill hooks. It was contended by the defendants, that Alexander had mixed up his own private affairs in the mill accounts. It is very certain, that many of the articles charged to customers in the books, such as the screenings, pigs, salt, &c., were Alexander’s private property; and these articles, although charged in the mill books, it was contended, were not carried into the settlements made by McBee and himself; but the books were kept in such a way, it was not, by any means, certain the facts were so. It appeared from the evidence of Mr. Benson, that in 1837, he sold to Alexander wheat, to the amount of $200, and when he and Alexander settled *for*it by note, Alexander said he ought to pay interest, as he had sold the flour, and loaned the money on interest to one Ware. In relation to Ware’s debt, it appeared that about $500 had been collected and divided between McBee *&*Alexander, in the ratio by which the profits of the mill were divided. The balance of the debt was transferred to Mr. Cleveland, but McBee claimed two-thirds of it. It also appeared, that in 1839, Benson sold to Alexander, and delivered at the mill, 143 bushels of wheat. A part of this wheat, it was said, was sold to Babe, for seed, and charged on the mill books. A note was afterwards given for Rabe’s account, including the wheat, payable to McBee *&*Alexander, which note was sued, and McBee, after the failure of Alexander, received the money; but it did not appear he knew for what the note was given.

It also appeared from the evidence of Mr. Turner, that when Alexander applied to Hawkins for some corn, he said he had bought wheat of Brock; that the mill did not make enough to supply their customers; some of them were out, and there were many of them who looked to the mill for their bread, as he (Hawkins) did to his corn crib; it would take one more load to supply them. Hawkins, who was examined as a *witness in*the other cases, stated the same. Mr. Hoke proved that Alexander said he got wheat from Turner, at $1 37, or $1 50 per bushel; said he *101was obliged to have it to supply their customers. Richardson, who was examined in Turner’s case, said, Alexander, when he got some grain from him, said the mill was out, and could not supply their customers. It appeared, also, that for many years, McBee *&*Alexander had a wagon on copartnership, the profits of which were divided in the same ratio. This wagon hauled much of the grain which the plaintiff sold to Alexander. Large quantities of corn, oats and fodder were hauled and put in the crib, at Alexander’s house. Alexander used out of it to feed his own stock, and sold to wagoners. The horses used with the partnership wagon, were also fed out of it; but the wagoner was directed to measure every thing he used for these horses, as Alexander said he charged McBee with two thirds. The books showed regular settlements up to 1835, but none after.

It was fully proved, on the part of the defendants, that Alexander had sent off and sold at Augusta and other places, large quantities of flour, which had been sold in his name, with the proceeds of which, sometimes salt, sugar and other articles were purchased. These articles he sold to various persons, and some charges for them áre found in the mill books ; but Alexander told the wagoner he paid the same freight as was charged to other persons, and directed correct accounts of freight and expenses to be kept, as he had to account to McBee for his share of the freight of the flour and other articles transported in the copart-nership wagon. It was clearly proved that Alexander bought wheat and other grain, as he said, on his own account, and ground it at the mill, for his own benefit; that he was in as good credit as any man in that country ; and one of the defendants, Richardson, said he would as soon have his money in Alexander’s hands, as in the bank. No witness said he ever understood there was a general partnership in the buying of grain, or selling of grain, or flour, other than the profits of the mill. Very few knew any thing of the terms on which Alexander kept the mill, and only one person had ever seen the agreement, and that only a short time before the failure.

There was no entry, in any of the books of the partnership produced, of the wheat, corn, &c., for which the *102plaintiffs in these cases sued; but it appeared some leaves had been torn out of some of the books, and Benson said when he and Alexander settled, Alexander referred to a book for an account of his wheat. I did ,not, however, think that the condition of the books afforded any evidence that they had been mutilated to suppress any thing for the defendants’ benefit, yet the jury may have thought otherwise.

In Richardson’s case, the action was on three notes, signed by Alexander, amounting to $576. There were co ants for wheat sold and delivered. The proof established the delivery of 400 bushels, on which $100 had been paid. Verdict for $300. There was nothing to identify the notes with the wheat delivered. In Hawkins’ case, the course of dealing seemed to be, that Alexander bought, for several years in succession, the plaintiff’s crop of wheat, amounting in all, the witness thought, to 1000 bushels, besides large quantities of corn, fodder and oats. The wheat was sent for by Alexander, and hauled to the mill — some by McBee *&*Alexander’s wagon, and some by other wagons. The plaintiff kept an account, and at the close of each year’s dealings, settled with Alexander, and took his notes. About January, 1839, he received $500 from Alexander, and some money before that time. The notes were consolidated, and one note for 1000 dollars taken. The action was on this note, and another note for $90; all the notes were given for grain. Hawkins’ son had some interest in the grain which was sold to Alexander, but it was an undivided interest, and he had been paid by his father the amount of his share in the crops. I did not understand any note had been given to the son, but he cropped with his father, and was entitled to a share of the proceeds. The jury found for plaintiff, $1090, the amount of the notes. There had been *it*large payment made at, or about the date of the large note, more than enough to extinguish all interest, and I told the jury I thought if they did find for the plaintiff, they might give the amount of the notes, as the evidence proved a debt to that amount for grain.

In Turner’s case, there was proof of the delivery, in the same way as in the other cases, of wheat, corn and *103fodder, to an amount much larger than the sealed note produced. After the evidence of delivery, Mr. Wardlaw exhibited a sealed note of Alexander’s, .and said the plaintiff claimed no more than the amount of it. It was not proved what the note was given for. It was, I believe, of later date than^the delivery of the grain. I was of opinion, and so told the jury, that admitting the partnership to be proved, if the plaintiff had taken Alexander’s sealed note for the grain, the open account was extinguished. There ivas a count on the declaration for the note. I thought that the production of the sealed note, under the circumstances, ought not to prejudice the plaintiff. The jury found for the plaintiff the amount due on the note.

In Emory Hawkins’ case, the proof was, the purchase by Alexander, and delivery at the mill, of about 54 bushels of wheat.

In February, 1840, Alexander made an assignment of negroes and other property, to Mr. Roberts, for the benefit of his creditors. All the plaintiffs had presented their demands, and attended the meeting of the creditors. They agreed to accept their dividends, but not to release Alexander. The property had been sold, and the dividends ascertained, but none of the plaintiffs had received their proportions ; some had requested him to keep the money until these suits were decided. On the trial of the two first cases, nothing was said about deducting the plaintiff’s proportion of these funds from the verdict, but it was inserted on the Turner. case. I thought it ought not to be allowed, and so told the jury, as it was a payment on the sealed note, and not on the account of the grain. The demands presented to Mr. Roberts were notes, and, exceptan the Hawkins case, the consideration of the notes was not proved. The dividend was 33 1-2 per cent. Hawkins’ dividend was $415, 95; Turner’s $159, 51; Richardson’s, $215, 71, and the dividend of Emory Hawkins, $17 16. It should be stated as a part of the case, that Alexander was McBee’s brother-in-law, in whom he greatly confided, and that he seldom visited the mill. It appeared that he had been in copartnership with three other gentlemen in merchandize ; that he never examined the books, and settled by the accounts as made out by his copartners. It was *104stated, the accounts charged in the hooks held by Alexander, in the name of McBee *&*Alexander, amounted, for two successive years, to more than $2100, whilst the cash book, in which the Settlements were made, never exhibited a larger sum than about $1600, and generally less, as divided between them.

I was of opinion, and so charged the jury, that according to the articles of agreement, there was a copartnership in the sale of the grain received at the mill, as toll, but unless the copartnership extended beyond this, the plaintiffs could not recover. The extent and subjects of a copart-nership, as between the parties, was ascertained by the articles, but as these were secret, and known only to the partners, those who dealt with it could know the objects of the parnership, only by the business that was transacted, and the things in which they dealt; and if the evidence was satisfactory, that the buying of wheat and other grain was a part of the regular business of the mill, carried on for the mutual benefit of the defendants, then McBee was liable. So, also, he would be liable, if he knowingly suffered Alexander to hold him out as a partner, and had thus obtained credit for the grain, on the partnership account; but of this I thought there was no evidence. The jury were instructed, also, that McBee would be liable, if the grain bought by Alexander from the plaintiffs, was carried into the partnership account, and McBee did, in fact, receive his" share of the proceeds of the sales of the grain and forage, so bought from the plaintiffs. ' In all the cases stated, the jury found for the plaintiffs. On some others, on grounds independent of the copartnership, they found for the defendants. I do not think any thing was said as to McBee’s receipt of profits without notice. If the grain was bought for the partnership, and sold for its benefit by Alexander, and McBee received his share of the profits, if any, I thought his liability arose from participation in profits, or loss of that particular transaction, and his knowledge, or ignorance was immaterial.

From these verdicts the defendants appealed in all the cases, because his Honor charged the jury that the articles of agreement, between the defendants, were a copartnership.

*105Caria, *per*

Evans, J.

It is objected to the charge of the presiding Judge, in these cases, that the jury were instructed, that by the articles of agreement, the defendants were partners in the sale of the grain received as toll at the mill. The elementary writers define a partnership to be, a contract between two or more persons, to place their money, effects, labor, and skill, or some, or all of these, in some lawful business, or traffic, and to share the profits and bear the loss in certain proportions. 3 Kent Com., 23. There is a class of cases, where a portion of the profits of a business may be given, by way of compensation for personal services; as in the case of an overseer, whose wages depends on the quantity of produce made, and the price for which it is sold; and of a clerk in a store, who receives, in lieu of certain wages, a share of the profits. But these persons are mere agents, with a contingent salary. They have no property in the things out of which the profits are to arise. Alexander had no interest in the mill, and so far as that was concerned, he was correctly styled in the articles as a miller; he was not McBee’s partner in the mill; but when the grain received as toll was mixed up, and became the subject of traffic, each being part owner, and interested in the proceeds of the sale, I thought at the trial, and still think, that they were partners in that particular business. The lines which divide partnerships from other joint interests are very shadowy. None of the elementary writers have succeeded in making them out clearly; and as it would be an unnecessary investigation in this case ; and, especially, as there is some diversity of opinion among my brethren, I do not propose to attempt, (if, indeed, the thing be practicable,) to lay down any rules by which to determine, in all cases, whether the articles make the parties partners, or not. As a general rule, it seems to me, that relation will exist, wherever there is a joint property in the thing sold, and a mutual interest in the result of the salé. The partnership, in these cases, if it existed, by the articles, extended only to the sale of the grain received as toll; it did not extend to the buying of grain, and the juries were expressly instructed, in all the cases, that McBee was not liable, under the articles, for the and *106Alexander from the plaintiffs. The question of partnership, as between the defendants, was to be decided by reference to the articles; but as to others, to whom the articles were unknown, the question was to be decided by the ostensible business carried on in their name and for their benefit. It was very clear, from the evidence in these cases, that, besides toll-wheat and corn, Alexander carried on a traffic in wheat, flour, corn, and other articles, both in buying and selling, and some, at least, of these articles, were carried into the books of account kept in the name of McBee *&*Alexander, and were included in accounts rendered, and in notes taken in their name. From these facts, it was argued, that a partnership, more extended than that embraced by the articles, did exist between these parties, in fact: extending to the buying and selling of wheat, corn, and the other articles embraced in the demands of these plaintiffs. I cannot say that the evidence, unexplained, does not admit of that interpretation. It was attempted to account for these circumstances, by shewing, that everything besides the toll, was, in fact, Alexander’s property; but instead of keeping a separate book for his own private dealings, whenever he let a customer of the mill have an article which belonged to himself, he charged it in the account of the purchaser, on the books of McBee *&*Alexander; but when he and McBee settled, these articles being his private property, were excluded from the settlement. That that was the fact with many of the things charged, such as screenings, pigs, pork, and beef, there was no reasonable grounds to doubt; and, in my judgment, it was very probable that it was the fact in relation to the other things; but the books were kept so loosely, that I cannot say the jury were not authorized by the evidence to come to a different conclusion. And if from the proof, they were satisfied that a partnership existed between the defendants, extending to and embracing within its scope, the wheat, corn, and other things purchased by Alexander from the plaintiffs, then McBee is liable; and in this point of view, it is not material whether the plaintiffs trusted Alexander alone, or not, for if McBee was a partner of Alexander, and shared in the profits of the business carried on by him, he would be *107liable, although his participation was not known to, or any credit given to him by the plaintiffs; as he would then stand on thé footing of a secret partner, and be liable as such.

Independent of the ground of actual partnership, there was some evidence that McBee participated in the proceeds of the sales of Benson’s wheat; and also, that the wheat and corn bought of some of the other plaintiffs, was to supply the regular customers of the mill, and charged in their accounts ; and the jury were instructed, that if the wheat and other articles, though bought on Alexander’s credit, were mixed up with the wheat and corn belonging to the mill, and sold for the mutual benefit of McBee and Alexander, then McBee would be liable to the plaintiffs, on the ground of participation in the pro-’ fits. Every partnership is more or less limited. None are so extensive as to embrace every thing ; and one partner may carry on a separate business on his own account, in those things which the co-partnership does not embrace ; and so long as he keeps it separate and distinct, so long it will be his own business ; but when he mingles it with the co-partnership effects, and sells it for the mutual benefit of all the partners, and the proceeds of the sale is carried to their joint account, and the profits divided among them, then they will be liable in that particular transaction, on the ground of participation in profit. They have had the benefit of the thing purchased, and should be liable to the seller, because, by taking a part of the profits, they take from the creditors a part of the fund which is the proper security for the payment of the debts. (3 Kent 27, and the cases there referred to.)

The only remaining ground of appeal which was urged in this Court, and upon which it is thought necessary to say any thing, other than what is contained in the report of the presiding Judge, is the 2nd, in which it is claimed that the defendants should have had a credit for the sums in Roberts’s hands, as the plaintiff’s proportion of Alexander’s assigned estate. I do not understand that Mr. Roberts is the agent of the plaintiffs. He was the as-signee appointed by Alexander to sell his property, and pay his debts, *pro rata.*The plaintiffs, it is true, consent*108ed and requested him to act, hut so long as the money remains in his hands, it is no payment to them. They have not consented to receive it as a payment of their demands against McBee and Alexander. On the contrary, some of them have expressly declined to receive it on that account. Besides this, as to a part of the plaintiffs, they have other demands than those recovered in these actions; and the proportion of Alexander’s estate to which they are entitled according to Mr. Roberts’s statement, is their proportions of their whole demands, and not the proportion of what they have established in these cases, as a debt due by McBee and Alexander.

In reviewing the legal questions involved in these cases, I do not perceive the defendants have been able to establish their proposition, that there was error in the charge of the presiding Judge, on any of the legal questions involved. Four of these cases were tried before me, and I am free to confess, the evidence on the questions of partnership and participation of profits, was not such as to satisfy my mind of McBee’s liability, but I cannot say there was no evidence from which the jury might not draw a contrary conclusion ; I cannot, therefore, see how we can interfere with the verdicts, without trenching upon the legitimate province of the jury. I am willing, whenever called on, to take the responsibility of deciding the law of a case, and in general, to leave to the jury the undivided responsibility of deciding the facts.

In the consideration of these cases, my remarks have been more particularly directed to the four cases tried before me. Benson’s case, which was tried before my brother Butler, does not vary, in any material point, from the others, and should share the same fate. The motions, in all the cases, are dismissed.

JOSIAH J. EVANS.

We concur. J. S. Richardson, J. B. O’Neall, A. P. Butler. Earle, J. *absent.*