Mr. Justice Paxson
delivered the opinion of the court,
_ This was a bill for an account filed against the surviving partner by the widow and administratrix of the deceased partner. The parties were two brothers, Walter Cresson, the appellant, and William Cresson, now deceased. Erom about the year 1850 until 1865, they carried on the business of manufacturing saws at Conshohocken, Montgomery county. This business was discontinued, and about the year 1867, they commenced the jewelry business in the city of Philadelphia. In both places it appears to have been carried on in the name of Walter Cresson. William was blind, and while he paid some attention to the business at Conshohocken, he gave it none whatever in Philadelphia. His visits to the jewelry store were infrequent. The most perfect confidence appears to have existed between the brothers. Walter kept the books, and William evidently had little, if any, knowledge of their contents.
The main contention was whether Walter was entitled, upon the adjustment of their partnership accounts, to a credit of $>30 per week as compensation over and above any share of the profits, for his services in attending to the jewelry business. This question is raised by the pleadings. There appears no written evidence of the partnership or of the terms upon which it was entered into. The bill, after setting forth the partnership in Conshohocken and [179]*179its termination, avers: “ That in the year 1867 the said partners commenced the jewellery business in the city of Philadelphia, investing therein $12,000 of the funds of said partnership, and carried the same on, in like manner as the said former business, till the decease of the said William Cresson as aforesaid.” To this general allegation of a partnership the appellant answered: “ There were no ‘funds of said partnership’ to be invested in the said jewelry business, for all were exhausted'in the purchases aforesaid. In October 1867, at the request of my brother, and with his approval, I purchased the stock in trade, &c., of the jewelry business, which had been carried on by one John Fries, by assigning to him the bond and mortgage of Joseph Lea & Co., for $12,000, belonging to my brother and myself. We then agreed to enter into a partnership for carrying on said business, at first as J. B. Powell & Co., and afterwards under the.firm name of Walter Cresson. As William "was blind and could not give any personal attention to the business, it was agreed that I should receive for my services $80 per -week, and that the profits remaining after the payment of all expenses, including the said payment to myself, should be equally divided. Said salary has been regularly drawn by me. Neither my brother nor I have ever drawn out of the business any sums on account of profits.” In a subsequent paragraph (7) the defendant further answered: “ I deny that I never accounted to William Cresson for the assets of the partnerships aforesaid. He was ‘thoroughly well aware of the disposition and appropriation that was made of the receipts of the sale of the saw-manufacturing business and property, and approved of such disposition and appropriation. He was also aware that I was drawing $30 per week as compensation for my services as manager of the jewelry business, in addition to my share o.f the profits, and approved of my doing so.” And in a supplemental answmr the defendant further said: “ The agreement between my brother William and myself, by which I was to receive out of the partnership fund before division of profits and losses, the sum of $80 per week as compensation for my services, was contemporaneous with the commencement of the partnership and its operations. My allusion in my answer to my brother’s approval of my drawing of that sum per week was merely to state that in the explanation of our affairs, which from time to time I gave, the deduction of that sum was known and approved by him. I did not mean that such approval was by way of any new agreement, for the agreement was made, as I have stated, at the begining of the partnership operations in the jewelry business.”
The learned master held that the answer was not responsive to the bill; that inasmuch as the bill averred a partnership, without setting out its terms, so much of the answer as sets up the agreement that Walter was to receive a compensation for his services was the assertion of a right affirmatively, in opposition to the plain[180]*180tiff’s demand, and that the defendant was as much hound to assert it by indifferent testimony as the plaintiff was to sustain his bill. This is the turning point of the case. If the answer is responsive, it must stand until overthrown by the testimony of two witnesses, or of one witness with corroborating circumstances. The court below reversed the master upon this point, and held the answer to be responsive. In this the learned judge was right. The case comes within the principle of Eaton’s Appeal, 16 P. F. Smith 483, where this subject was fully discussed, by the present chief justice, and the authorities referred to. It was attempted, however, to distinguish this case from Eaton’s Appeal, upon the ground that in the latter the interest of the parties in .the partnership was set forth in the bill, and that therefore an averment in the answer of one of the defendants, that he had four-ninths interest instead of three-ninths, as alleged by plaintiffs, was responsive. This is a distinction without a difference. In Eaton’s Appeal the bill charged a partnership between three, and that their interests were equal. Here the bill avers generally a partnership between two. The effect of this averment, if established, is to make them equal partners, for the law presumes that a partnership is for the equal benefit of all concerned, until the contrary appears. So that the legal effect of the bill is the same as if it had charged that the partners were to share the profits equally. Under such circumstances it would be an inequitable rule that would prevent the defendants denying the equality of the partnership, and yet compel him to admit the partnership itself.
While the learned judge held the answer to be responsive, he also ruled that it was guilty of duplicity, because of that portion of paragraph'7, which avers, that the decedent “was also aware that I was drawing $30 per week, as compensation for my services as manager in the jewelry business, in addition to my share of the profits, and approved of my doing sothat this is an averment of a subsequent license, not part of the original contract, but something subsequently alleged in avoidance of liability, and therefore not responsive. In this the learned judge fell into error. The answer avers with sufficient distinctness that the agreement for the additional compensation was a part of the originalmontract of partnership. If any doubt existed upon this point it is removed by the supplemental answer which asserts it unequivocally. If then the agreement for compensation was a part of the original contract, the averment in the answer that the defendant had, from the day of its formation, drawn the amount thereof with the knowledge and approval of the plaintiff, furnishes no room for the allegation that it was setting up a subsequent license to draw the $30 per week; a new contract inconsistent with that already alleged. It is not duplicity to allege that the contract for compensation set up in the answer had been carried out' by the parties.
[181]
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Mr. Justice Paxson
delivered the opinion of the court,
_ This was a bill for an account filed against the surviving partner by the widow and administratrix of the deceased partner. The parties were two brothers, Walter Cresson, the appellant, and William Cresson, now deceased. Erom about the year 1850 until 1865, they carried on the business of manufacturing saws at Conshohocken, Montgomery county. This business was discontinued, and about the year 1867, they commenced the jewelry business in the city of Philadelphia. In both places it appears to have been carried on in the name of Walter Cresson. William was blind, and while he paid some attention to the business at Conshohocken, he gave it none whatever in Philadelphia. His visits to the jewelry store were infrequent. The most perfect confidence appears to have existed between the brothers. Walter kept the books, and William evidently had little, if any, knowledge of their contents.
The main contention was whether Walter was entitled, upon the adjustment of their partnership accounts, to a credit of $>30 per week as compensation over and above any share of the profits, for his services in attending to the jewelry business. This question is raised by the pleadings. There appears no written evidence of the partnership or of the terms upon which it was entered into. The bill, after setting forth the partnership in Conshohocken and [179]*179its termination, avers: “ That in the year 1867 the said partners commenced the jewellery business in the city of Philadelphia, investing therein $12,000 of the funds of said partnership, and carried the same on, in like manner as the said former business, till the decease of the said William Cresson as aforesaid.” To this general allegation of a partnership the appellant answered: “ There were no ‘funds of said partnership’ to be invested in the said jewelry business, for all were exhausted'in the purchases aforesaid. In October 1867, at the request of my brother, and with his approval, I purchased the stock in trade, &c., of the jewelry business, which had been carried on by one John Fries, by assigning to him the bond and mortgage of Joseph Lea & Co., for $12,000, belonging to my brother and myself. We then agreed to enter into a partnership for carrying on said business, at first as J. B. Powell & Co., and afterwards under the.firm name of Walter Cresson. As William "was blind and could not give any personal attention to the business, it was agreed that I should receive for my services $80 per -week, and that the profits remaining after the payment of all expenses, including the said payment to myself, should be equally divided. Said salary has been regularly drawn by me. Neither my brother nor I have ever drawn out of the business any sums on account of profits.” In a subsequent paragraph (7) the defendant further answered: “ I deny that I never accounted to William Cresson for the assets of the partnerships aforesaid. He was ‘thoroughly well aware of the disposition and appropriation that was made of the receipts of the sale of the saw-manufacturing business and property, and approved of such disposition and appropriation. He was also aware that I was drawing $30 per week as compensation for my services as manager of the jewelry business, in addition to my share o.f the profits, and approved of my doing so.” And in a supplemental answmr the defendant further said: “ The agreement between my brother William and myself, by which I was to receive out of the partnership fund before division of profits and losses, the sum of $80 per week as compensation for my services, was contemporaneous with the commencement of the partnership and its operations. My allusion in my answer to my brother’s approval of my drawing of that sum per week was merely to state that in the explanation of our affairs, which from time to time I gave, the deduction of that sum was known and approved by him. I did not mean that such approval was by way of any new agreement, for the agreement was made, as I have stated, at the begining of the partnership operations in the jewelry business.”
The learned master held that the answer was not responsive to the bill; that inasmuch as the bill averred a partnership, without setting out its terms, so much of the answer as sets up the agreement that Walter was to receive a compensation for his services was the assertion of a right affirmatively, in opposition to the plain[180]*180tiff’s demand, and that the defendant was as much hound to assert it by indifferent testimony as the plaintiff was to sustain his bill. This is the turning point of the case. If the answer is responsive, it must stand until overthrown by the testimony of two witnesses, or of one witness with corroborating circumstances. The court below reversed the master upon this point, and held the answer to be responsive. In this the learned judge was right. The case comes within the principle of Eaton’s Appeal, 16 P. F. Smith 483, where this subject was fully discussed, by the present chief justice, and the authorities referred to. It was attempted, however, to distinguish this case from Eaton’s Appeal, upon the ground that in the latter the interest of the parties in .the partnership was set forth in the bill, and that therefore an averment in the answer of one of the defendants, that he had four-ninths interest instead of three-ninths, as alleged by plaintiffs, was responsive. This is a distinction without a difference. In Eaton’s Appeal the bill charged a partnership between three, and that their interests were equal. Here the bill avers generally a partnership between two. The effect of this averment, if established, is to make them equal partners, for the law presumes that a partnership is for the equal benefit of all concerned, until the contrary appears. So that the legal effect of the bill is the same as if it had charged that the partners were to share the profits equally. Under such circumstances it would be an inequitable rule that would prevent the defendants denying the equality of the partnership, and yet compel him to admit the partnership itself.
While the learned judge held the answer to be responsive, he also ruled that it was guilty of duplicity, because of that portion of paragraph'7, which avers, that the decedent “was also aware that I was drawing $30 per week, as compensation for my services as manager in the jewelry business, in addition to my share of the profits, and approved of my doing sothat this is an averment of a subsequent license, not part of the original contract, but something subsequently alleged in avoidance of liability, and therefore not responsive. In this the learned judge fell into error. The answer avers with sufficient distinctness that the agreement for the additional compensation was a part of the originalmontract of partnership. If any doubt existed upon this point it is removed by the supplemental answer which asserts it unequivocally. If then the agreement for compensation was a part of the original contract, the averment in the answer that the defendant had, from the day of its formation, drawn the amount thereof with the knowledge and approval of the plaintiff, furnishes no room for the allegation that it was setting up a subsequent license to draw the $30 per week; a new contract inconsistent with that already alleged. It is not duplicity to allege that the contract for compensation set up in the answer had been carried out' by the parties.
[181]*181The answer being responsive and not open to the charge of duplicity, was there sufficient testimony in the case to overcome it ? That is to say, was there the testimony of two witnesses for the plaintiff upon this point, or the testimony of one witness with corroborating circumstances? The master concedes there is no countervailing testimony as to the agreement for compensation, and that it would be conclusive upon the point were the answer entirely consistent. I quote from his report: “ But inasmuch as the answer, while averring an agreement, also avers a license or permission on the part of the now deceased partner, by which the compensation in question was drawn by the defendant in this case, the whole matter has been referred back in order to determine which of these conflicting statements is correct.” The master thereupon proceeded to consider the case and took some additional testimony. As a result he finds that the answer is overcome by the other proofs in the case, and his finding was confirmed by the court below. Herein was error. The finding of the master was without testimony to support it. His report admits, as before stated, that there is “ no countervailing testimony as to the agreement for compensation.” His conclusions are merely deductions from certain facts in the cause, and whether accurate or not, lack the essential aid of another witness. The facts to which the master refers might, in case his deductions from them are correct, be valuable as corroborating circumstances, but as independent proof they are not sufficient. The master deduces his opinion that there was no agreement for compensation as set forth in the answer, from the following: 1. That Walter Cresson was entirely ignorant of the jewelry business, and that as a practical man had to be employed, Walter’s services could not have been worth the large sum demanded for them. 2. That the knowledge of William Cresson’s membership in the firm, and of said alleged agreement between the brothers, was withheld from Mr. Powell, who appears to have been interested in the business for a short period at its commencement; and 3. That Walter Cresson had given instructions to Powell to withhold from William any knowledge of the business in case he asked about it. “ These facts,” says the master, “together with the inconsistency of the answer which has been already referred to, force the conclusion that there was no such agreement ever made as that averred in the answer.” Had the existence of the agreement been denied by a competent witness, the matters upon which the master relies might, if his deductions from the facts are sound, have been sufficient to overcome the answer. But no witness has said there was not such an agreement. That Mr. Powell did not know of it is no more remarkable than is the fact that he did not know that Walter and William were partners.
We are of opinion that the court below erred in confirming so much of the master’s report as surcharged the defendant with [182]*182$11,093 drawn out by him as compensation for carrying on the jewelry business, at the rate of $30 per week from its commencement till its .ending by the death of William Cresson. This disposes of all that needs discussion in the case. The learned judge properly applied the Statute of Limitations, and his ruling upon other points are free from error.
The decree is reversed at the costs of the appellee, and it is ordered that the record be remitted for further proceedings.