See infra, as to mining partnerships; also MINES AND MINING.
Pima Property. Partners have, presump tively, the same interest in the stock that they have in the profits ; Ryder v. Gilbert, 16 Hun (N. Y.) 163. Their shares are pre sumed to be equal both in capital and prof its; Ryder v. Gilbert, 16 Hun (N. Y.) 163 ; Griggs v. Clark, 23 Cal. 427. Where no defi nite arrangement is made between partners as to a division of profits, the presumption of law is that they are to be equally divided ; Frazer v. Linton, 183 Pa. 186, 38 Atl. 589. But a joint stock is not essential to a part nership. The partner without capital is then interested, not in the fund, but in the ad venture ; 2 Bingh. 170; Moore v. Huntington, 7 Hun (N. Y.) 425; Ewell's Lind. Part. *13.
Sometimes a partneiship exists between parties merely as the managers and dis posers of the goods of others; 4 B. & Ald. 663 ; Walden v. Sherburne, 15 Johns. (N. Y.) 409, 422. So, it seems, two persons may be owners in common of property, and also partners in the working and management of it for their common 2 C. B. N. S. 357, 363; 16 M. & W. 503.
Whether a partnership includes the capital stock, or is limited to the profit and loss, must be determined from the agreement and intention of the parties; Bradbury v. Smith, 21 Me. 120. See 4 B. & C. 867; Story, Part. § 26.
A partner may contribute only the use of his capital, retaining full control of the principal ; and he may charge interest for the use whether profits are earned or not; Evvell's Lind. Part. *328. If, however, the firm funds are expended in repairing and improving the property thus placed at their disposal, it becomes partnership stock ; Ewell's Lind. Part. *330 ; Lane v. Tyler, 49 Me. 252; Deveney v. Mahoney, 23 N. J. Eq. 247; Appeal of Clark, 72 Pa. 142.
The partnership property consists of the original stock and the additions made to it in the course of trade. The term means such property, real and personal, as by the agreement of the partners is to be devoted to firm purposes ; Jenkins v. Jenkins, 81 Ark. 68, 98 S. W. 685; and when one partner put in hia property as against the other's ex perience, the partnership was only as to the profits ; Hillock v. Grape, 111 App. Div. 720, 97 N. Y. Supp. 823.
All real estate purchased for the partner ship, paid for out of the funds thereof, and devoted to partnership uses and trusts, whether the legal title is in one or all of the partners, is treated in equity in the same manner as other partnership property until the partnership account is settled and the partnership debts are paid ; 5 Ves. 189 ; Fall
Aiver W. co. v. Borden, 10 Cush. (Mass.) 458 ; 3 Kent 37 ; Jarvis v. Brooks, 27 N. H. 37, 59 Am. Dec. 359 ; Ewell's Lind. Part. Leases or real estate taken by one partner for partnership purposes, mines, and trade-rearks are held to be partnership prop erty ; 1 Taunt. 250; Story, Part. § 98. The good-will of a business Is an asset of the firm. But Kent says, "The good-will of a trade is not partnership stock ;" 3 Kent 64. The good-will of a professional partnership be longs, in the absence of express stipulations, exclusively to the survivors ; 3 Madd. 64 ; a surviving partner has the right to 'carry on the business under the firm name ; 28 Beay. 536; 34 id. 566 ; Caswell v. Hazard, 121 N. Y. 484, 24 N. E. 707, 18 Am. St. Rep. 833 ; 7 Sim. 421; Staats v. Howlett, 4 Den. (N. Y.) 559; contra, Fenn v. Bolles, 7 Abb. Pr. (N. Y.) 202 ; Colton v. Thomas, 7 Phila. (Pa.) 257; the reason being assigned that to permit it would impair the value of the good-will and might subject the retired part ners to additional liabilities ; Lindl. Partn. 2d Am. Ed. *444 ; 43 Ch. D. 208. It is said to be the better opinion that the firm name is an asset of the firm ; Pars. Partn. § 182, n. Where there is a sale of the business to a partner, the latter does not, without ex press agreement, acquire a right to the firm name ; 43 Ch. D. 208 (C. A.) ; Williams v. Farrand, 88 Mich. 473, 50 N. W. 446, 14 L. It. A. 161; but see 10 Ch. D. 436 (C. A.) ; Holmes, B. & H. v. Mfg. Co., 37 Conn. 278, 9 Am. Rep. 324; even so as to advertise him self as "successor"; id.; but he may adver tise that he is "late of" the former firm ; id. A continuing partner who has the right to a retiring partner's name, cannot transfer it to a corporation ; Bagby & R. Co. v. Rivers, 87 Md. 400, 40 Atl. 171, 40 L. R. A. 632, 67 Am. St. Rep. 357; nor, when in sell ing out, there was no mention of the good will, can he use it so as to give third persons cause to believe that the retired partner is still associated with the business; McGowan Bros: P. & M. Co. v. McGowan, 22 Ohio St. 370.