Opinion
6 Div. 114.
January 15, 1921.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Russell Johnson, of Oneonta, for appellant.
The parties were partners inter sese. 7 Ala. 569; 37 Ala. 201; 113 Ala. 447, 21 So. 459.
Kelton Son, of Oneonta, for appellee.
In determining whether a partnership exist or was created, the intention of the parties is the question for consideration. 147 Ala. 512, 40 So. 319. As to what is the true test see, 19 Ala. 774; 14 Ala. 303; 53 Ala. 205, 25 Am. Rep. 607; 180 Ala. 3, 60 So. 63.
Viewing the evidence in the light most favorable to the appellant, it shows that the appellee owned a peanut thresher; that he entered into an agreement with appellant for its operation, by the terms of which appellee agreed to furnish the machine, one-half of the gasoline and oil for its operation, and keep the machine in repair, and the appellant agreed to furnish one-half of the gasoline and oil for the operation of the machine, and all the labor necessary for operating the machine in threshing and hulling peas for the public; the peas taken as toll to be equally divided between the parties. The appellee's evidence was to the effect that his part of the toll peas was to be paid him by the appellant as rent for the use of the machine, and that he did not contemplate engaging in a partnership enterprise with the appellant.
From this evidence it does not appear that it was contemplated or agreed that the parties should share equally in the losses. Non constat, under the arrangement between the parties, it was not impossible for one to have sustained a loss and the other to have made a profit, and hence it cannot be said as a matter of law that the arrangement between the parties constituted a partnership inter sese. Zuber v. Roberts, 147 Ala. 512, 40 So. 319; Howze v. Patterson, 53 Ala. 205, 25 Am. Rep. 607; Watson v. Hamilton, 180 Ala. 3, 60 So. 63.
Under the evidence the court correctly refused the charges requested by the appellant.
There is no error in the record.
Affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.