The principal distinction between a partnership and a mere agency is that a partner has a commu nity of interest with the other partners in the busi ness and responsibilities of the partnership,—some times both in the stock and profits, and sometimes only in the profits,—whereas an agent, as such, has no interest in either. Story, Partn. 0 1 ; Bisset, Partn. 35; 16 Ves. Ch. 49; 17 id. 404; 4 Barnew. & C. 67; I Deno. Bank. 341. "The authority- of a partner is much mare exteesive than that of a mere agent." 10 N. H. 16.
10. The formation of a contract of part nership does .not require any particular for mality. It is, in general, sufficient that it is formed by the voluntary consent of the parties, whether that be express or implied, whether it be by written articles, tacit approbation, or by parol contract, or even by mere acts. Story, Partn. 86 ; 3 Kent, Comm. 27 ; Dav. Dist. Ct. 320 ; 4 Conn.' 568. There are but fqw cases in which a writing is necessary. ruder the Statute of Frauds, where there is an aoyeement that a, partnership shall commence at some time more than a year from the oinking of the agreement, a writing is neces sery. 5 Barnew. & C. 108. With respect to tbot part of the Statute of Frauds relating to lands, it has been held that a partnership may be constituted without writing, 20 Beav. Rolls, 449, and that if a partnership is proved to exist it may be shown that its property consists of land, although there is no signed agreement between the parties. 5 Ves. Ch. 309 ; 10 Cush. Mass. 458. So it has been held that an agreement to form a partnership for the purpose of buying and selling land may be proved by parol. 5 Hare, Cb. 369 ; 2 Phil 266 ; 2 Hall & T. 224. But this latter proposition is not generally conceded. The con trary doctrine has the weight of learned opi nions. See Day. Dist. Ct. 320 ; Story, Partn. 83 ; 3 Sumn. C. C. 458-471 ; 2 DeGex & J. 52.
H. Whether a partnership exists or not in a particular case is not a mere question of fact, but one mixed of law and fact. It is, nevertheless, generally to be decided by a jury. See 3 Harr. N. J . 358 ; 4 id. 190 ; 6 Conn. 347; 1 Nott & M'C. So. C. 20 ; 1 Caines, N. Y. 184 ; 2 Fla. 541 ; 9 C. B. 457 ; 3 C. B, N. s. 562, 563 ; 9 Bingh. 117.
The existence of a partnership may be proved by showing—first, a distinct agree ment for a partnership : or, second, an agree ment to share profit and loss ; either of these will be conclusive : or, third, an agreement to share profits,—which will be strong evidence of a partnership : or, jburth, circumstances sufficient to establish a quasi-partnership, which, being proved, is held to be prinzd facie evidence of a real partnership.
Where thete is no written agreement, the evidence generally relied upon to prove a partnership is the conduct of the parties, the mode in which they have dealt With each other, and the mode in which each has, with the knowledge of the others, dealt with other persons. This can be shown by the books of account, by the testimony of clerks, agents, and other persons, by letters and admissions, and, in short, by any of the modes in which facts can be established. As to the presump tion arising from the joint retainer of solicit ors, see 20 Beni% Rolls, 98 ; 7 DeGex, M. & G. 239 ; 7 Hare, Ch. 159, 164. For cases in which partnership has been inferred from various circumstances, see 4 Russ. Ch. 247 ; 2 Bligh, N. s. 215 ; 3 Brown, Parl. Cas. 548 ; 5 id. 482 ; 1 Stark. 81 ; 2 Campb. 45.
12. It is said by Mr. Collyer that " per haps it may be laid down generally that a partnership may exist in any business or transaction which is not a mere personal office, and for the performance of which pay ment may be enforced." Collyer, Partn. 56. There may be a partnership to trade in land. 21 Me. 421, 422 ; Dav. Dist. Ct. 320 ; 7 Penn. St. 165 ; 10 Cush. Mass. 458 ; 4 Conn. 568 ; Story, Partn. 82, 83. A ship, as well as any other chattel, may be held in strict partnership. 3 Kent, Comm. 154 ; Collyer, Partn. 1185 ; 12 Mass. 54 ; 6 Me. 77 ; 15 id. 427. But ships are generally owned by parties as tenants in common ; and they are not in consequence of such ownership to be considered as partners. Collyer, Partn. 1185 ; 6 Me. 77 ; 6 Pick. Mass. 120 ; 24 id. 19 ; Abbott, Shipp. 97 ; 14 Conn. 404 ; 14 Penn. St. 34, 38 ; T. Ravm. 15 ; 8 Gill, Md. 92. The same is true ofwany other species of property in which the parties have only a community of interest. Pothier, Partn. n. 2 ; Story, Partn. 3 ; 1 Lindley, Partn. 30 et seq. ; 8 Exch. 825 ; 21 Beav. Rolls, 536 ; 24 id. 283 . 2 C. B. N. s. 357.