Thillman v. Benton

Citations

• 82 Md. 64
• 33 A. 485
• 1895 Md. LEXIS 111

Syllabus

<p>What Constitutes a Partnership — Participation in Profits — Evidence— Agency.</p> <p>The mere fact that a person has a right to participate in the profitsf of a business cafried on in the names of other persons does not o itself make such person a partner, but it is an important circumstance to be considered in connection with others for the purpose of ascertaining whether a'partnership exists or not.</p> <p>When two or more persons agree to carry on a business with the right to share in the profits of the same, such a contract generally constitutes a partnership unlesss there be other facts which show that some other relation existed between the parties. And if there be a partnership in fact, then the public has a right to assume that each partner is authorized to bind the whole firm by contracts made according to the usages of the trade.</p> <p>Whether a partnership exists or not is a question of substance and not of the mere form of the agreement. If persons, under the guise of an arrangement as creditors of others are really trading as principals, and putting forward as the ostensible traders the latter, who are really agents, then the former will be treated as partners or principals.</p> <p>An agreement in writing between the defendant and persons carrying on a business under a certain firm name, recited that the firm needed additional capital, which defendant agreed to contribute, and it was stipulated that after the payment of the expenses the firm should pay to the defendant for the use of said sum an amount equal to one-third of the net profits, and at the end of one year the principal sum so advanced by the defendant was to be repaid. The contract also provided that defendant should have free access to all books and accounts. The defendant carried on his own different business in another part of the city and took no part in the management of the firm’s affairs, except to examine the books occasionally and to advise as to the conduct of the business. In