Argument for Plaintiff in Error. each year, leaving the final settlement until the whole business was settled up; and that he received under the agreement about $1500-the first year and $1000 each subsequent year. On cross-examination, the witness stated that the firm made an assignment to the plaintiff for the benefit of creditors on April 30, 1885; that their liabilities were from $60,000 to $70,000, about half of which was with collateral security, and he did not know whether it had been paid out of such security; that the assets realized less than $2000; that, so far as he knew, no dividend had been paid; and, in regard to the $10,000 received from Perry, the witness testified as follows: "Q. Mr. Counselman and yourself did owe this $10,000 to the estate of Mr. Perry, did you? A. They had my notes for it. Q. Did you or did you not owe it? A. It was capital he had in the business the same as ours. We owed it to him. Of course we owed it to him if we did not lose it." At the close of the plaintiff's evidence, the defendant moved for a nonsuit, on the ground that there was no evidence to show that Perry was liable as a partner. The court so ruled, and ordered a nonsuit. 29 Fed. Rep. 276. The plaintiff duly excepted to the ruling, and sued out this writ of error. Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson for plaintiff in error. In Baylis v. Travellers' Ins. Co., 113 U. S. 316, 321, this court says: "The right of trial by jury in the courts of the United States is expressly secured by the Seventh Article of Amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing." And in Marshall v. Hubbard, 117 U. S. 415, it said, in effect, that it is the duty of the court to give to the party the benefit of every inference that could be fairly drawn from the evidence, written and oral; and that it is only when the party is so given the benefit of every such inference, that could be fairly drawn from the evidence, that the court is justified in withdrawing the case from the jury. Argument for Plaintiff in Error. We are, therefore, remitted to the question whether the evidence for the plaintiff, as disclosed by the record, was of such a conclusive character as that, after giving to the plaintiff the benefit of every inference that could be drawn from it, it was of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to grant the nonsuit which was granted. The original contract, and its extensions, gave Perry an interest in the profits as such. In this regard, the contracts were not a mere method of securing to him usurious interest, or of measuring his compensation. Taken by itself, this makes out a prima facie case of partnership. The leading case on this point in this court is Berthold v. Goldsmith, 24 How. 536, which has ever since been recognized by this court and the other Federal courts as authority, and the leading one, upon the questions as to what tests guide in determining the question of partnership. In that case it was said: "Actual participation in the profits as principal, we think, creates a partnership as between the parties and third persons, whatever may be their intentions in that behalf, and notwithstanding the dormant partner was not expected to participate in the losses beyond the amount of the profits. Every man who has a share of the profits of a trade or business ought, also, to bear his share of the loss, for the reason that, in taking a part of the profits, he takes a part of the fund of the trade on which the creditor relies for payment. Grace v. Smith, 2 W. Bl. 998; Waugh v. Carver, 2 H. Bl. 235. Actual partnership, as between the creditor and the dormant partner, is considered by the law to subsist where there has been a participation in the profits, although the participant may have expressly stipulated with his associates against all the usual incidents of that relation. Pond v. Pittard, 3 M. & W. 357. That rule, however, has no application whatever to a case of service or special agency where the employé has no power as partner in the firm and no interest in the profits as property, but is simply employed as a servant or special agent, and is to receive a given sum out of the profits, or a portion of the same, as compensation for his services." Argument for Plaintiff in Error. This case was decided in 1860, the same year in which the case of Cox v. Hickman, 8 H. L. Cas. 268, was decided, and although the court below seemed to regard that case as deciding that a participation in the profits as profits, as distinguished from a stipulation for their being paid as a means of measuring compensation, did not show a partnership, as held in Berthold v. Goldsmith, yet we do not see that it did so decide, or that the case is at all in conflict, for our purposes, with the case of Berthold v. Goldsmith. The English case was one where the question was whether certain "scheduled creditors," (who were to be paid a share of such profits as should accrue from their debtor's business, under a deed creating a trustee,) should be deemed partners; and the House of Lords held that they were not made partners in the business; just as this court, stating the rule in the case already quoted from, says, that where the employé has no power as partner in the firm business, and no interest in the profits as profits, but is simply employed as a servant or agent, there the party receiving a share of the profits is not made a partner. But, aside from this, this court has, since the decision in Cox v. Hickman, recognized the accuracy of the opinion in Berthold v. Goldsmith. It is so recognized in the cases of Seymour v. Freer, 8 Wall. 202, 221; Hunt v. Oliver, 118 U. S. 211, 221. In Hackett v. Stanley, 115 N. Y. 625, a partnership was held to arise out of a written contract in no material respects different from the one in the case at bar. See also Richardson v. Hughitt, 76 N. Y. 55; Burnett v. Snyder, 76 N. Y. 344; Curry v. Fowler, 87 N. Y. 33; Cassidy v. Hall, 97 N. Y. 159; Clift v. Barrow, 108 N. Y. 187. See also Parker v. Canfield, 37 Connecticut, 250, where the facts are very similar to those in the case at bar. For the decisions in Massachusetts see Pratt v. Langdon, 12 Allen, 544; S. C. 93 Am. Dec. 61; Fitch v. Harrington, 13 Gray, 468; S. C. 74 Am. Dec. 641; Holmes v. Old Colony Railroad, 5 Gray, 58; Brigham v. Clark, 100 Mass. 430; Getchell v. Foster, 106 Mass. 42; Pettee v. Appleton, 114 Mass. 114. For the rule in Ohio see Wood v. Vallette, 7 Ohio St. 172; Farmers' Insurance Co. v. Ross, 29 Ohio St. 429. Argument for Plaintiff in Error. As to Maryland, see Rowland v. Long, 45 Maryland, 439. Wilson v. Edmonds, 130 U. S. 472, in no degree conflicts with our present position, that being a case where the alleged contract of partnership did no more than secure to Edmonds 10 per cent interest on vouchers bought for him by his agent, Squires. In Hazard v. Hazard, 1 Story, 371, (1840,) it was held that a partnership as to third persons might arise between the parties by mere operation of law, against the intention of the parties; whereas, as between the parties it would exist only when such is the actual intention of the parties. See also Cheap v. Cramond, 4 B. & Ald. 663; Peacock v..Peacock, 16 Ves. 49; Ex parte Hamper, 17 Ves. 403; Ex parte Hodgkinson, 19 Ves. 291; Ex parte Langdale, 18 Ves. 300; Heskeith v. Blanchard, 4 East, 44; Muzzy v. Watson, 10 Johns. 226; Dob v. Halsey, 16 Johns. 34; S. C. 8 Am. Dec. 293, Thus it appears to be settled that the written contract entitling Perry to a share of the net profits, at least, makes out a prima facie case of partnership, and therefore entitled the plaintiff to introduce, as against Perry's estate, the declarations of his copartners, as is held in Pleasants v. Fant, 22 Wall. 116, 120, where it is said that "one of the most approved criteria of the existence of the partnership, in such cases, is the right to compel an account of profits in equity." In the case at bar such a result follows in equity, from the covenant in the written contract that Perry should have one-tenth of the net profits in excess of $10,000. While it is true that, as between creditors and copartners, it is immaterial, as bearing upon the liability of secret partners to creditors, whether the creditors, when they give trust to the firm, knew of the partnership of the secret partner or not, and it is also immaterial as to whether the partners meant to make a partnership; yet it is also true, in cases like the present, that the question as to what was the intention of the partners, regarding the formation and existence of a partnership, is a material circumstance in the case. Clift v. Barrow, 108 N. Y. 92. In view of this principle of law, as well as in view of all the Opinion of the Court. evidence which was withdrawn from the consideration of the jury by the court, it seems to us quite impossible to reach the conclusion that there was not error in the withdrawal of these questions of fact from the jury. Mr. Richard C. Dale and Mr. Samuel Dickson (with whom was Mr. Henry P. Brown on the brief) for defendant in error. MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court. The granting of a nonsuit by the Circuit Court, because in its opinion the plaintiff had given no evidence sufficient to maintain his action, was in accordance with the law and practice of Pennsylvania prevailing in the courts of the United States held within that State, and is subject to the revision of this court on writ of error. Central Transportation Co. v. Pullman's Car Co., 139 U. S. 24, 38-40. The real question in this case, therefore, is whether the evidence introduced by the plaintiff would have been sufficient to sustain a verdict in his favor. The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits. Ward v. Thompson, 22 How. 330, 334. Some of the principles applicable to the question of the liability of a partner to third persons were stated by Chief Justice Marshall in a general way as follows: "The power of an agent is limited by the authority given him; and if he transcends that authority, the act cannot affect his principal; he acts no longer as an agent. The same principle applies to partners. One binds the others so far only as he is the agent of the others." "A man who shares in the profit, although his name may not be in the firm, is responsible for all its debts." Stipulations [restricting the powers of partners] may bind the partners, but ought not to affect those to whom they are unknown, and who trust to the general and well |