whether an actual partnership exists is thus stated.
"Partnership is either actual or nominal. Actual
partnership takes place when two or more persons
agree to combine property, or labour, or both,
in a common undertaking, sharing profit and loss.
'I have always,' says Tindal C. J., in Green v.
Beesley, 2 B. N. C. 112, 'understood the definition of
partnership to be a mutual participation in profit or loss.'
But with respect to third persons, an actual partnership
may subsist where there is a participation in the profits,
even though the participant may have most expressly
stipulated against the usual incidents to that relation."
In Dixon v. Cooper (a), which was an action for not
accepting 300 quarters of wheat, a factor for the plaintiff,
who made the contract with the defendant, and was to
have 1s. in the pound for selling the wheat, was the only
witness at the trial who proved the contract. It being
objected that he was not a competent witness, as being
interested, the point was reserved for the opinion of the
Court and it was held that he was a good witness,
being, as a factor, concerned both for the vendor and
vendee as a mere go-between, and so a good witness for
either of them. [Wightman J. That case is scarcely
in point.] In Dry v. Boswell (b) an agreement between
A., the sole owner of a lighter, and B., a lighterman, that
B. should work the lighter, and in consideration thereof
should have half her gross earnings, was held not to
constitute a partnership between them, being only a
mode of paying B. for his labour.

Secondly, as to the alleged misdirection. The learned

1860.

BLECH

V.

BALLERAS.

(a) 3 Wils. 40.

(b) 1 Campb. 329.

1860.

BLECH

V.

BALLERAS.

Judge properly directed the jury that the fifth clause of the agreement imposed upon the defendants the absolute responsibility of shipping the engines at their own risk and expense, and that they were therefore liable for any delay, however caused, in the process of shipment. They have detained the ship for their own exclusive purposes, beyond the stipulated ten days, and must therefore pay for the detention.

Milward and Crompton Hutton, in support of the rule. First the agreement constituted a partnership between the plaintiff and the defendants. The transaction amounted to this: the plaintiff, being, pro hâc vice, the owner of the steamer, and capable of letting her for any purpose, says to the defendants, "You have a house at Barcelona, and you want to send your engines and tenders out there; I am willing to join you in the speculation of sending them in my ship." The defendants accept this offer, and the agreement is entered into, by which the plaintiff is to be paid by the partnership a lump sum of 6501. for bringing the ship into the adventure, upon the condition that the profit or loss of the adventure beyond or below that sum is to be shared equally between the partners. The stipulation that the plaintiff was to pay all charges meant no more than that he was to contribute to the partnership the sailing expenses as so much capital. In an action against third persons for not shipping goods on the steamer, supposing them to have contracted to ship them, the plaintiff must have joined the defendants as co-plaintiffs, or he would have been nonsuited. [Wightman J. Suppose that goods had been shipped, the freight of which would, with the

240% paid by the defendants, have amounted to exactly 650%. In that case the defendants would have had nothing further to pay or to receive.] It may happen, in any partnership, that the outgoings exactly equal the incomings; but such a state of things does not affect the nature of the partnership. Moreover, the 2407. to be paid at Liverpool by the defendants is a partnership item paid by them in advance; they would have been entitled to a return of it had the ship not performed the voyage; and the plaintiff, being their partner, could not have sued them for it if unpaid. [Crompton J. Supposing the right construction of the second clause to be, that the defendants should not require the ship to remain on the berth more than ten days, how can the damages arising from her detention beyond that time be a partnership item?] The money paid by the defendants on that score would go into the general accounts of the partnership. The right construction, however, is that the partnership shall not require the detention. [Blackburn J. To whom do you say that the 2407. was payable under the 4th clause ?] To the partnership. The agreement was, in effect, that the plaintiff should contribute the ship, not to the defendants alone, but to the partnership; and the defendants were to pay the 2407. to the partnership, as an equivalent contribution on their part. Clauses 7 and 8 relate to the joint management of the speculation by the partnership. By clause 9, the plaintiff, who must be meant by "the steamer," guarantees to the partnership that the steamer is of a certain capacity. Clause 10 makes the plaintiff's office the office of the partnership, for carrying out the speculation. Clause 11, by which the steamer is to be consigned at

1860.

BLECH

V.

BALLERAS.

B

P

18

214

1860

BLECH

BALLERAS

Barcelona to the friends of the defendants, shews that the parties knew how to word the agreement directly Secondly: the learned Judge misdirected the jury, in in favour of one of them, when that was their intention. ruling that the defendants were liable for every delay in shipping the engines, however occasioned; for it was no part of the duty or obligation of the defendants to make alterations in the ship, which did not belong to them, so as to fit her to receive their goods. In the case of an ordinary contract for the carriage of goods in a ship, it is the duty of the shipowner to have the ship in a fit condition for taking them on board. The shipper brings the goods to the quay, and the shipowner takes them on board from there. He is responsible for risks of stowage, the sufficiency of tackle, and so forth. The 5th clause of the agreement modified this responsibility, which would otherwise have fully devolved upon the plaintiff, to this extent, that all goods exceeding 20 cwt. in weight were to be put on board and stowed by the defendants. But that clause did not require the defendants to make alterations in the ship, in order to fit her for receiving the goods when brought on board; nor did it relieve the plaintiff from his implied promise that the ship was fit for their reception. Lord Ellenborough C. J., in delivering the judgment of this Court in Lyon v. Mells (a), said, “In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board or employing his vessel or lighter for that purpose, it is a

(a) 5 East, 428. 437.

term of the contract on the part of the carrier or lighterman, implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public: it is the very foundation and immediate substratum of the contract that it is so : the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of sound policy and public convenience requires it should be so." As the ship, here, required alteration, before she could stow the engines, the plaintiff committed a breach of this implied promise, and he, not the defendants, was responsible for the consequent delay. [Wightman J. The bargain was that the defendants were to stow the engines. It turned out that they could not be stowed unless the ship was altered. Both parties knew, before the agreement was made, that some alteration would be requisite.] Had it been intended that the defendants were to make the alterations, there would have been an express stipulation in the agreement to that effect.

Mellish was heard in reply on the point as to the misdirection.

Cur, adv. vult.

BLACKBURN J. now delivered the judgment of the

Court.

This was a case tried before me at the last Liverpool Assizes. The plaintiff Blech was charterer of the steam ship William France for six months. The plaintiff had made an agreement in writing with the defendants to carry in the ship some engines and tenders to Barcelona.

1860.

BLECH

V.

BALLERAS.