Connolly v. Davidson.

Wend. 175. The defendant says, however, that there was no connection in the business; each was to run his boats where he pleased and as he pleased.

In the case last above cited, which presents many points of analogy with this, the decisive feature was, that all the fare received from passengers by any of the parties was to be a common fund for divisjon. Per COMSTOCK, J., in Merrick v. Gordon, 20 N. Y. 93.

So, here, all the receipts for passengers and freight on any part of the route of either boat constituted a common fund for division. And in Smith v. Wright, 1 Abb. Pr. 243, there was no more "mixing of management" than in this case; each of the firm alleged to be partners having the exclusive control and management of the business done by it under the agreement between them. These two mercantile firms mutually agreed each to put out contracts in its own name, for sale and delivery of produce at future days, all profits of such adventures and all losses to be equally divided.

The court of appeals, reversing the judgment of the supreme court (S. C., 5 Sanford, 113), held, that this agreement created the relation of partnership as to third persons, and that the one firm was liable as a partner upon a contract made by the other, accordingly, in its several name.

It is true, the court observe in that case, that a community of interest in the profits is all that has ever been considered necessary to create a partnership as against third persons; whereas the modern English rule is, that the test whether a person who is not an ostensible partner in a trade is, nevertheless, in contemplation of law, a partner, is not whether he is entitled to participate in the profits, although this affords cogent, often conclusive, evidence of it, but whether the trade has been carried on by persons acting in his behalf. Smith v. Wright would nevertheless fall within the English rule, for, if there was to be a community of interest in the profit and loss of each contract, the firm that made it was certainly acting on behalf of the other, as well as itself, in so doing.

Neither is the circumstance, if it be so, that by the agreement which the second instruction assumes each would bear his own losses, at all inconsistent with the existence of a partnership as to third persons.

In Waugh v. Carver, 2 H. Bl. 235, the leading case on this subject, there was an express stipulation, that neither of the alleged partners should be answerable for the acts or losses of the other. In

VOL. II.-21

Connolly v. Davidson.

that case A. and B., ship agents at different ports, entered into an agreement to share in certain proportion the profits of their respective agencies, and they were held partners as to third persons, notwithstanding the above stipulation as to losses. Nor is it material "that the balance, according to the proportion agreed on, was to be paid over at the end of the season." See a similar agreement in substance in Waugh v. Carver. We might admit the English doctrine, as laid down in Wheelcroft v. Hickman, 99 E. C. L. 47, and yet the fact, that by the agreement which the second instruction assumes, the profits of the business were to be equally divided, would, we think, furnish conclusive evidence of the existence of a partnership as to third persons. Whatever should be earned by either under that agreement would be received on joint account, to be subsequently divided, which would make them partners as to third persons. 1 Smith Lea. Ca. pt. 2, 1191. In carrying on the business in which it was earned each would act for the other as well as for himself. "A man who orders another to carry on trade, whether in his own name or not, to buy and sell, and pay over all the profits to him, is undoubtedly the principal, and the person so employed is his agent. So, if two or more agree that they shall carry on a trade and share the profits of it, each is a principal, and each is an agent for the other, and each is bound by the other's contracts in carrying on the trade as much as a single principal would be by the act of an agent who was to give the whole of the profits to his employer. Hence it becomes a test of the liability of one for the contract of another, that he is to receive the whole or a part of the profits arising from that contract by virtue of the agreement made at the time of the employment. I believe this is the true principle of partnership liability." Per Lord WINSLEYDALE in Cox v. Hickman, 99 E. C. L. 47, 99.

We perceive nothing in the state of facts assumed by the instruction which would go to repel the presumption arising from the agreement to share profits, that in running his boat Rumsey was acting as well on behalf of Davidson as of himself. The instruction is,

therefore, we think, correct in point of law.

The defendant further excepts to the instruction given, and to the refusal to give the first instruction prayed for by him, because, as he alleges, if there was a partnership, the "John Rumsey" and "Albany" were in it, and, as the jury must have found that plain

Connolly v. Davidson.

tiff's injuries were sustained through the oegligence or misconduct of those employed in navigating the "John Rumsey," he must be considered as their co-employee, within the rule which exempts the master from liability to one of his servants for injuries sustained by him through the negligence, carelessness or misconduct of a fellowservant employed in the same general business. If Davidson's testimony does not tend to prove the state of facts assumed by the second instruction, there is no evidence that the "Albany" was included in any arrangement under which he and Rumsey were partners in running the "Rumsey." If it does, however, the case on this bill of exceptions does not fall within the rule referred to. Plaintiff and those navigating the "John Rumsey" cannot be said either to be engaged in the same common enterprise, or employed to perform duties and services tending to accomplish the same general purposes, as that language is used in the case of Wright v. Central R. R. Co., 25 Wis. 562 (relied on by defendant), as synonymous with the same general business," nor are the examples there given of maintaining and operating a railroad, "operating a factory," "working a mine," or "erecting a building," at all analogous to the case at bar. If (and we think the test a good one, as illustrated by the case of Abrahams v. Reynolds, 5 Hurl. & Norm. 142) the question in each case is, as the court of appeals state that it is, whether the alleged co-employees are under the same general control, the rule clearly cannot be claimed by defendant to apply here, for he swears that he and Rumsey had each the exclusive control and management of his own boats and hands. Each boat, in fact, was doing a separate business in every respect (though of the same sort) as much so as any two independent railroads separately owned and managed, but run for the joint profit of the owners, in which easily conceivable case, while the owners of the railroads might be partners as to third persons in the business of running each, the employees on each, though they were engaged in the common enterprise of maintaining and operating that road on which they were respectively employed, and assume the risks incident to that business, could no more be said to assume the risks incident to the business of maintaining and operating the road upon which they are not employed, than in the instance put in the leading case on tnis subject, in this country, of Farwell v. Boston and Wor. R. R 4 Met. 49.

Connolly v. Davidson.

There was no error, therefore, in the instruction in this respect, and the instruction asked and refused would, in our view of the case, be an abstract proposition, having no application to the facts of the case, and therefore properly refused.

Judgment affirmed.

CASES

IN THE

SUPREME COURT

OF

NEW HAMPSHIRE.

GERRISH V. CLOUGH, appellant.

(48 N. H. 9.)

Littoral rights.

The defendant, owning land on one side of a river, built a break-water to prevert the water's encroaching upon his land, which had the effect to throw the current over upon and wash away the plaintiff's lands opposite. Held, that the defendant was liable.

ACTION on the case for diverting the current of the Merrimack river, by reason of which the plaintiff's lands were washed away.

The plaintiff and defendant respectively owned lands on the opposite sides of the river, and it appeared that for several years prior to 1861 the river had been encroaching on and washing away defendant's lands, while it gradually receded on the side owned by the plaintiff.

To prevent further encroachment, the defendant erected on his side of the stream a break-water, which, it was contended, had changed the current so as to throw it over against the plaintiff's lands, which were in consequence washed away. The court instructed the jury that the defendant had the right to protect his banks from further encroachments, provided it did not work injury to other riparian owners, but had no right to turn the current so as to wash away plaintiff's lands, and that if the channel of the river was gradually changed by natural causes, the channel as so changed inust be regarded as the rightful channel as respects the rights of the opposite owners. The jury rendered a verdict for the plaintiff, and the defendant moved for a new trial.