THE SCOPE AND SUBJECT-MATTER. A part nership is primarily a commercial relation. The notion has, however, been gradually ex tended to include other associations than those for trade merely : e. g. partnerships between two attorneys at law ; Livingston v. Cox, 6 Pa. 360; Warner y. Griswold, 8 Wend. (N. Y.) 665; Smith v. Hill, 13 Ark. 173. It is said by Collyer that "perhaps it may be laid down generally that a partner ship may exist in any business or transac tion which is not a mere personal office, and for the performance of which payment may be enforced." Colly. Part. 5th ed. § 56.
The classification of partnerships with re spect to the nature of the business is into trading and non-trading forms and the dif ference is in the powers of the partners, as in the former they have implied power to borrow money and to give the firm . paper therefor, but in the latter they have no such power unless the act in question is clearly within the scope of the firm's business; Lee v. Bank, 45 Kan. 8, 25 Pac. 196, 11 L. R. A. 238; Alley v. Bowen-Merrill Co., 76 Ark. 4, 88 S. W. 838, 113 Am. St. Rep. 73, 6 Ann. Cas. 127; Kimbro v. Bullitt, 22 How. (U. S.) 256, 16 L. Ed. 313; and the burden is on the plaintiff to show authority, express or implied, or ratification ; Pease v. Cole, 53 Conn. 53, 22 Atl. 681, 55 Am. Rep. 53. For merly the question whether the act done was within the scope of the business, was for the jury ; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; but latterly in the case of ordinary transactions, the question was treated as one of law for the court ; Al sop v. Trust' Co., 100 Ky. 375, 38 S. W. 510; Farmer v. Bank, 51 S. W. 586, 21 Ky. L. Rep. 425 ;, and in one case it was said to be a matter of which courts take judicial cog nizance under the law merchant ; Woodruff v. Scaife, 83 Ala. 152, 3 South. 311; and see Gilmore, Partn. 287.
The early law did not recognize partner ships for trading in land, because the land was all held by the barons who did not engage in trade. But in modern times, and especially in America, where the social con ditions are different, land is largely held by speculators whose operations as partners the law must recognize; Dudley v. Littlefield, 21 Me. 421, 422 ; Kramer v. Arthurs, 7 Pa. 165; Ludlow's Heirs v. Cooper's Devisees, 4 Ohio St. 1; Chester v. Dickerson, 54 N. Y. 1, 13 Am. Rep. 550. In transferring title to and from the firm ''the ordinary rules of convey ancing must be observed. When the title is
in all the partners, all must join in the deed; if in the name of one, he alone need execute; Story, Part. § 92; Coles v. Coles, 15 Johns. (N. Y.) 159, 8 Am. Dec. 231; Davis v. Chris tian, 15 Gratt. (Va.) 11; Arnold v. Steven son, 2 Nev.:234.
Building operations are now upon the same footing as land speculations; Reynolds v. Cleveland, 4 Cow. (N. Y.) 282, 15 Am. Dec. 369. But the tradition has been too strong to be impaired as yet in landlord and tenant cases. Farming on shares is not partner ship. The owner of land may either receive a share in the produce as rent, or give such 'a portion to a laborer in lieu of wages; Lind. Part. Am. ed. •651; Keiser v. State, 58 Ind. 379. But there may be a partnership in the development of land owned by one; Aut rey v. Frieze, 59 Ala. 587.
A much mooted question whether under the 'Statute of Frauds an ordinary contract of partnership for dealing in land either incidentally or as a business, must be in writing, seems to be determined, on the weight of authority, in the negative ; Wil liams v. Gillies, 75 N. Y. 197 ; Pennybacker v. Leary, 65 Ia. 220, 21 N. W. 575; Marsh v. Davis, 33 Kan. 326, 6 Pac. 612 ; Brooke v. Washington, 8 Gratt. (Va.) 248, 56 Am. Dec. 142 ; Van Housen v. Copeland, 180 Ill. 74, 54 N. E. 169; Stitt v. Lumber Co., 98 Minn. 52, 107 N. W. 824; Garth v. Davis, 120 Ky. 106, 85 S. W. 692, 117 Am. St. Rep. 571; Mor gart v. Smouse, 103 Md. 463, 63 Atl. 1070, 115 Am. St. Rep. 367, 7 Ann. Cas. 1140; Fall River Whaling Co. v. Borden, 10 Cush. (Mass.) 458; contra, Goldstein v. Nathan, 158 Ill. 641, 42 N. E. 72; Norton v. Brink, 75 Neb. 566, 106 N. W. 668, 110 N. W. 669, 7 L. R. A. (N. S.) 945, 121 Am. St. Rep. 822; Schultz v. Waldons, 60 N. J. Eq. 71, 47 Atl. 187; Appeal of Everhart, 106 Pa. 349; Langley v. Sanborn, 135 Wis. 178, 114 N. W. 787; Scheuer v. Cochem, 126 Wis. 209, 105 N. W: 573, 4 L. R. A. (N. S.) 427; McKinley v. Lloyd, 128 Fed. 519. This is said to result from the fact that partnership is based on a contract which may be shown by oral evi dence and then what are its assets and the interests of the partners may be also shown by such evidence; 5 Ves. 309 ; 5 Hare 369'; contra, Smith v. Burnham, 3 Sumn. 435, Fed. Cas. 13,019, where Story, J., discusses the authorities at large; and see Gilmore, Partn. 94, where the cases are collected.