Waring v. National Marine Bank

Robinson, J., delivered the opinion of the Court. This is a proceeding in involuntary insolvency, instituted against the appellants as partners inter sese; and the only question to he considered, in the view we take of the case, is whether the fact of partnership is made out by the proof. If no such partnership existed, then this proceeding must fail. And in the determination of this question, there is, we must bear in mind, a well recognized distinction between a partnership as between the parties tJhemselves, and a partnership as to third parties, which arises by operation of law.

Persons by their conduct and course of dealing may be held liable as partners to third parties dealing with them, even though there was in fact no agreement of partnership. But the question of partnership inter sese is one of intention, and it may be laid down as a general rule that no such partnership can exist against the consent and intention of the parties. “ The ²⁸⁰ fact of the existence or non-existence of a partnership as between the parties themselves, must be gathered,” says the Court in Bull vs. Schuberth, 2 Md., 55 , “from the intention of the parties. Kerr vs. Potter, 6 Gill, 423 ; Heise vs. Barth, 40 Md., 259 ; Mollwo, March & Co. vs. Court of Wards, L. R., 4 Privy Council Appeals, 425. Now, what is the proof in this case?

Prior to January 1880, the appellants had been engaged in the manufacture of fertilizers, under the firm name of “Thomas Waring & Brother. ” About that time they discontinued doing business =as partners, and transferred to the Waring Manufacturing Company, a corporation chartered under the laws of this State, their brands, trade marks and good will; and agreed to give to the company their labor, skill and knowledge in the conduct and management of the business of manufacturing fertilizers, in consideration of which they were to receive a proportion of the net profits of the business, and were to bear their proportion of losses sustained in the purchase of real estate. After the execution of this agreement, Thomas Waring, One of the members of the firm of Waring & Brother, became the President of the company, and Wilson Waring the other member became the Vice-President, and, as such, they conducted and managed the business of the company. It is not contended there was a partnership between the appellants and the company, but it is insisted that the transfer by them to the company of the brands, trademarks and business of the old firm, and their agreement to conduct and manage the business of the company, in consideration of which they were to receive a certain proportion of the net profits, and the further fact that they did so manage the business of the company, are facts in themselves sufficient to prove a partnership inter sese. Now, we quite agree that these facts,