Heise v. Barth

Miller, J., delivered the opinion of the Court. The only question of any importance in this case is, were the appellant and appellee partners inter sese in the business of conducting, managing and superintending the affairs and operations of the Brewing Company of which they had been appointed managers? As such managers they had charge of all the company’s property, and the entire control and general superintendence of all its affairs, including the purchase of whatever was necessary to carry ²⁶⁶ on its business of brewing, paying its debts and collecting all moneys due it from the sale of.beer and other merchandise. For these services the company agreed to pay them five per cent, on all sales of beer or other articles, which-by an arrangement between them was to be divided in the proportion of three.per cent, to the appellant, and two per cent, to the appellee.

This is not a case in which the parties held a mere formal office in which no partnership can exist. Though as to the company they were its managers or mere agents, there Was no difficulty in their becoming partners in the business of the management or agency itself: quoad hoc, it is as much a business or trade as the employment of a factor or broker or attorney, in relation to which it is conceded a partnership may exist. This’ point was not seriously controverted in argument, but as there were no written articles or express parol contract of partnership, and it is to be inferred from the acts of the parties, it is insisted there must be stronger proof to authorize a Court to imply a partnership inter sese than to establish one as to third parties. On this subject our own decisions have settled the rule by'which we must be guided.

There is no doubt of the correctness of the position that parties may be adjudged partners as to third persons when they are not so in fact, inter sese. The views of Chancellor Kent, that “ there is a just and marked distinction between partnerships as" respects the public, and partnerships as respects the parties, and a person may be held liable as a partner to third persons although the agreement does not create a partnership between the parties themselves—actual intention is requisite to constitute a partnership inter sese,” have been adopted by this Court in Kerr vs. Potter, 6 Gill, 423 . And in Bull vs. Schuberth, 2 Md., 55 , the Court says, “the fact of the existence or non-existence of a partnership as between the partners themselves must be gathered from the intention, of the parties, and the ²⁶⁷ Court in arriving at the intention must form their conclusions from deductions drawn by analogy from principles of law applied to the facts and circumstances developed in the case.” Following and applying that rule in this case we have no difficulty in adjudging a partnership between these parties. As we have already said the business or employment in which they were engaged, was one in which a partnership may exist, and the law does not require in any case, that a partnership shall be evidenced by writing or be proved by an express parol agreement to that effect, but it may be inferred from the acts and conduct of the parties.

If from these intent to form a partnership appears, it is sufficient. From the admissions in the answer and the proof in the record, it is in our judgment clear these parties by a voluntary contract put into this business in common, their labor, skill and credit in