which each has an express or implied authority to bind the others." Where a person is only interested in the profits of a business as a means of compensation, he is not a partner. In such case his interest is not a property in the profits as such, but a claim against them as a fund out of which, when ascertained, he is to be compensated. * * * Mr. Parsons says: "A mere payment or promise to pay out of the profit a sum of money as a specific proportion of the profits, does not necessarily constitute the payee a partner, and gives him no interest in the profits and no right to the profits, but only a personal claim against the promisor for such money or for such a share of profits after they are ascertained, and n ay be divided." The words which the parties use, and all of them, and all the parts and provisions of their agreement, as well as its general character and their re'ation to each other, are to be looked at, and if the whole evidence leads to the conclusion that the receiver of money took it in good faith, only as wages, or specific compensation or payment, and did not intend to acquire any interest in or any control over the business, or in the profits as they accrue, and before they are ascertained and divided, but only after they were ascertained to find in them the fund, and in their amount the measure of his payment, he is no partner nor liable as such. Parsons Part. *71 and notes. Again he says, after reviewing all the leading authorities upon this subject: "On the other hand, we think that, notwithstanding dicta of immense weight apparently to the contrary, the cases show that there are but two grounds upon which a man can be liable as a partner to third parties, and that is, if a man has not been held out as a partner, he can be chargeable as such only when he holds that relation to profits, which we believe to be the ultimate test of partnership, both inter se and as to third parties; that is, unless he has some ownership in or of the profits as they accrue, and are not yet ascertained and divided into portions." Parsons Part. *71, note 7. In Richardson v. Hughitt, 76 N. Y. 55, the court, in speaking of the profit test, says: "And here comes another exception to the rule last stated, which is, that when the person has no interest in the capital or business, and is to be remunerated for his services by a compensation from the profits, or measured by the profits, or what is to depend, as in case of seamen or other voyagers, upon the result, it has no application. Where, then, one is only interested in the profits of a business as a means of compensation, he is not a partner." The agreement in question, while it stipulates that the appellant is to be paid one fifth of the profits, falls clearly within the exceptions to the rule that interest in profits involves liability as a partner. Its leading recitals and terms show its true character to be a mere contract to advance money or supplies, not as an owner, but as a creditor, relying on the ores to repay his advances, and on the profits as a fund for a compensation in lieu of interest. The court below correctly instructed the jury as to the true character of the agreement, but left it to the jury to find. whether the appellant had held himself out as a partner in such a manner as to render him liable. There was substantially no evidence to support this theory of the case, on the contrary, it appears that the appellant lived and did business in another county, and from the date of the agreement between Moffett and the appellant in October, 1877, until about the 10th of July following, when the mine was closed, the appellant never visited the mine, nor does he appear to have exercised a single act of control in its management. When, in July, the disorder of Moffett's affairs demanded his presence at the mine, he found it closed, and the appellee and other workmen in possession of and guarding the ores which they had attached for their wages. The agreement which was then entered into by the appellant, the appellee and the other workmen, in regard to the disposition of the ores for their common benefit, affords a strong presumption that at and prior to that date the appellant had not been thought of as a partner. In this agreement he is scheduled as a creditor entitled to share the proceeds arising from a sale of the ores, and Moffett alone is mentioned as the debtor. The testimony touching the declarations of Perdue was of declarations touching payment and not partnership, and if anything, was an undertaking to pay the debt of a third person. This testimony, however, was not competent, as Perdue's agency for any such purpose was not established. The court erred in admitting it. A careful examination of the record shows no evidence to support the verdict of the jury, and the court below should have granted the motion for a new trial. The judgment is reversed, and the cause remanded. Judgment reversed. FLINT, JOHNSON & Co. v. EUREKA MARBLE Co. (53 Vermont, 669. Supreme Court, 1881.) Arrangement between quarry and marble mill-Test of partnership— Book account for indorsements. The defendant company was the owner of an undeveloped marble quarry, and plaintiffs were its principal stockholders. The company contracted to quarry, deliver on the cars and pay one half the cost of removing the marble to plaintiffs' mill; the plaintiffs were to manufacture it and divide the avails equally. The company credit becoming poor, the plaintiffs had to indorse its paper in order to enable it to keep up the supply of marble. Held. that there was no partnership as there was no community of profit and loss. By the arrangement one might gain and the other lose. 2. That in an action on book account the mill men could recover the moneys actually paid under their indorsements; but not for indorsements outstanding. Request to indorse implied. The knowledge and acquiescence of a defendant in the indorsement of its paper by a third party, to the benefit of defendant's credit, is evidence from which a request to indorse may be inferred. 2 Contract between corporation and stockholders. A contract between a corporation and parties owning a controlling interest in the stock the court will carefully scrutinize, and may refuse to enforce its unjust provisions. Case heard at the March term, 1880. Action, book account. Judgment, pro forma, was rendered upon the report of an auditor for the plaintiff to recover the sum of $16,833.63. The exceptions were allowed and certified by the first assistant county judge, Hosea B. Ballou, presiding, as the judge of the Supreme Court holding this term was disqualified by Rutland Co. v. Ripley, 3 M. R. 291. 2 Twin Lick Co. v. Marbury, 3 M. R. 688; Merrick v. Peru Co., Id. 583. reason of having been of counsel. The auditor found, among other things, as follows: The Eureka Marble Company was incorporated in 1866 and organized soon afterward. The company purchased a marble quarry in Rutland, where they have done their business since 1867. On the 17th day of February, 1871, said corporation contracted to lease their quarry and lands connected with it to George Hart, of Boston, Mass., J. G. Flint, of Milwaukee, Wis., William H. Johnson and George H. Babbitt, of Bellows Falls. And at the same time entered into a contract in writing, by the terms of which the Eureka Marble Company was to furnish blocks of marble from their quarry to said Hart, Flint, Johnson and Babbitt; and they were to saw the same, market the marble, and after deducting the expenses of collecting, pay to the Eureka Marble Company one half of the proceeds of such collections. In April, 1871, the copartnership of Flint, Johnson & Co. was formed, the members of whom were said George Hart and J. G. Flint, Wyman Flint, William H. Johnson and George H. Babbitt. All these partners were stockholders in said Eureka Marble Company, the Flints owning one hundred shares, Johnson and Babbitt fifty shares. Hart owned and held as collateral and controlled something over fifty shares. The number of shares of said company was four hundred. No special request was ever made by the Eureka Marble Company to Flint, Johnson & Co., for the indorsement of its paper or for the payment of the indebtedness of the corporation or the furnishing of the materials charged in their specification. The business was all done and controlled by said copartnerships. But I find that said corporation understood and knew the manner in which the business was conducted, and never objected to the action of the copartnership. If, from the acquiescence of the corporation in the indorsement of its paper and payment of the same, the employment and payment of the workmen upon the quarry, and the furnishing the materials charged in the specification, I am at liberty to infer a request on the part of the corporation to the copartnership to do so, then I find such request, but from no other evidence in the case. DAVENPORT & EDDY, for the plaintiffs. Book account will lie: Sargeant v. Pettibone, 1 Aik. 355; Wilkins v. Stevens, 8 Vt. 214; Warden v. Johnson, 11 Vt. 455; Chellis v. Woods, Ib. 466; Weller v. McCarty, 16 Vt. 98; Gassett v. Andover, 21 Vt. 342. It was the duty of the auditor to do as he has done-adjust all the items of account due and payable at the time of the audit and strike the bal ance as he finds it: Ambler v. Bradley, 6 Vt. 119; Pratt v. Gallup, 7 Vt. 344; Martin v. Fairbanks, 7 Vt. 97; Wetherell v. Evarts, 17 Vt. 219; Chaffee v. Malarkee, 26 Vt. 242. In the absence of fraud and bad faith, contracts thus entered into between a corporation and some one or more of its members, are binding to the same extent as if made with outside parties. Angell & Ames on Corp., § 233; Turnpike Co. v. Willard, 5 Mass. 85; Gilmore v. Pope, Ib. 491; Canal Co. v. Gordon, 1 Pick. 297; Revere v. Copper Co., 15 Pick. 351; Rogers v. Danby U. Society, 19 Vt. 187. PROUT & WALKER and W. H. SMITH, for the defendant. All the dealings between these parties were copartnership business and grew out of their joint relation. And the defendants urge that the action of book account is not the appropriate remedy for the settlement of such claims: Hydeville Co. v. Barnes, 37 Vt. 588; Huxley v. Carman, 46 Vt. 462 ; 10 Vt. 314; 22 Vt. 181; 27 Vt. 286; 29 Vt. 1; 31 Vt. 395. The plaintiffs "assumed the lease and contract" and "undertook to carry out the same." Some one of the plaintiffs signed the notes with defendant's name and indorsed them with plaintiffs' name. Plaintiffs kept the books of both par ties all in one. As the case finds the defendant never requested the plaintiffs to indorse its paper or pay any of the debts which plaint iffs seek to charge upon defendant in this action. The defendant knew how the business was being done and made no objection, as the case finds. Who was there to object? Personally the defendants are all plaintiffs here. How could the defendant object, as plaintiffs controlled the corporation? The case furnishes no ground for inference of a request on the |