7. The proposition being admitted that a parti cipation in profits will render the participator liable as a partner to third persons, the most difficult question, and one that requires further considera tion, remains, viz. :• what kind or dogree of partici pation will produce that effect? Bisset, Porta. 10. It seems to be no longer true, lie a general pro position, that receiving a certain proportion of the profits, whether gross or nct, Collyer, Partn. 0 35 and note, arising from a union in business of the capital of one man and the labor, services, or skill of another, necessarily creates a pertnership. 5 Gray, Mass. 59, 60; 6 Mete. Mites. 92; 10 id. 303; 12 Conn. 69 ; 13 N. H. 185; Collycr, Partn. 44, note; 15 Me. 294; 30 id. 386; 3 C. B. N. S. 562,563. See 18 Johns. N. Y. 34; 18 Wend. N. Y. 175; 6 Conn. 347 ; Collyer, Partn. 38. Althongh a pre sumption of partnership would seem to arise in such a case, Collyer, Partn. 0 85, still, the particular cir cumstances of the ease may be such as to repel this presumption. It may appear that the share of the profits taken was merely a compensation to one party for labor and service, or for furnishing the raw materials, or a mill-pnvilege, or factory, or the like, from which the other is to earn profits. Story, Partn. 0 36; 5 Gray, Maas. 60; Collyer, Partn. 0 85 ; 8 Cush, Mass. 556, 562 ; 3 Keot, Comm. .33; 6 Heist. N. J. 181.
Subtle distinctions have been taken between a payment out of profits and a payment varying with them, and between an agreement to share profits as such and an agreement to share profits not as pro fits but as something else. It has been held that in order to render a man liable because he participates in the profits he must have a specific interest in the profits themselves, ae profile. 17 Veg. Ch. 404,419; 1 Rose, Bank. 89; 18 Vets. Ch. 300; Bieeet, Partn.
13 ; Collyer, Partn. 00 40, 41; 4 Paige, Ch. N. Y. 148 ; 12 Conn. 69; 6 Meta. Mass. 82; 5 Den. N. Y. 180; 3 Kent, Comm. 34. The distinction is be tween payments out of profits as such and pig ments not out of them as such. This distinction must be considered as settled in point of law. See 1 Lindl. Partn. 39; 3 C. B. 32.
In other cases, it is held that in order to render a man liable as partner he must have a specitm in terest in the profits as a principal trader. Collyer, Partn. 0 25; 12 Conn. 77, 78; 1 Den. N. Y. 337; 15 Conn. 73 ; 10 Mete. Mass. 303. But in reference to these positions the questions arise, When may a party be said to have a specific interest in the profits, asprofita when, as a principal trader 1—questiooe in themselves very nice, and difficult to determine. See 6 Mete. Mass. 82; 12 Conn. 77. These subtleties are attributable, on the one hand, to the establish ment of the rule that persons who share profits shall be answerable for the losses, and, on the other, to s disinclination to apply that principle to cases in which it is clear that those who share the profits never intended to become partners inter se.
S. There, are other cases in which considerable stress is laid on the right to an account of pro fits as furnishing a rule of liability. Bisset, Partn. 14;15; 3 Kent, Comm. 25, note; 1 Rose, Bank.91; Casey, Nitta. 11, note (1); 18 Wend. N. Y. 184, 185;•3 C. B. N. s. 544, 561; Story, Partn. 0 49. But, although it is true that every partner must have a right to an account, it seems not to be equally true that every party who has a right to an account is a partner. 5 Gray, Mass. 58; Bisset, Partn. 14 ; 7 Jarman, Cony. Sweet ed. 11, n.
There are still other oases, which rely upon a dis tinction between receiving a share of the gross pro fits or returns and a share of the net profits, in which it is held that sharing the net profits makes one liable as a partner, but sharing the gross profits or returns does not. But the decisions are neither clear nor unirorm upon this distinction. Collyer, Partn. 0 35, note; 1 Campb. 329 ; Story, Partn. 34; 3 Kent, Comm. 25, note ; 3 Meas. 86 W. Exch. 357, 360, 361 ; .3 C. B. N. s. 544, 562 ; 9 C. B. 432 ; 2 H. Blackst. 590 ; 4 Maule .Yr S. 240.
It haa frequently hem held that a partnership does not result from an agreement to share gross returns. If several persons make advances for a eommon object, and agree to share the grdss re turns in proportiou to their advances, this does not oreate such a community of interest in profits or losses as to make such persons partners. 9 Bin gh. 297 ; Sel. Cas. in Ch. 9; 2 C. B. N. s. 357; 4 Maule Ac S. 240.
9. The truth is, the dOctrines upon which men are held liable as partners often tend so strong-ly to work injustice that many refinements have been ingrafted upon them, and the decisions have fre quently been made to turn upon their own peculiar circumstances : so that no clear and intelligible prin ciple running through and governing all the ca,ses can easily be extracted from them. Without a careful examination of the disturbing causes, it would cer tainly be difficult to see why receiving certain share of the profits for labor and services, or for furnishing raw materials, etc., should riot be,. while receiving a oertaia share of the profits for a loan of money should be, held to render a man liable as a partner.
A loan of money to be repaid with interest, how ever exorbitant, and however much it may dra.n the resources of the borrower, does not constitute a qua4-partnership between him and the lender; but it is otherwise if profits are pointed at as a form for payment. 2 W. Blackst. 999 ; 5 Barnew. St Ald. 954; 1 Jac. Ch. 144; Bisset, Partn. 24, 25 ; 1 Lindl. Partn. 40; 6 Pick. Mass. 372.