Emery J.
—The plaintiffs have sued the defendant for not delivering a deed mentioned in the condition of the bond declared [336]*336on, and with the plea of non est factum, is a brief statement made by the defendant, alleging general performance.
The plaintiffs proved that on the 14th January, 1833, Edward Smith and the defendant being at Portland, said Smith tendered to the defendant, $5969,17 in cash, and two notes signed by the said Edward,, in the name of E. and S. Smith, payable to the defendant or order for $5969,17 in one year with interest, and the like sum in two years with interest; and proved, that the said E. and S. Smith were partners in the business of purchasing real estate, dealing in timber lands, &c., and that their notes, signed by either partner, as the aforesaid-notes were signed, were uniformly discounted at the banks in Bangor, and duly paid. Having made the tender, said Edzuard demanded the deed, to which the defendant replied he should not receive the money or notes as it was going to Mr. Pierce at Bangor, and also added that he should not give a deed at present. Edward, Smith and Samuel Smith, both resided at Bangor, and there was no evidence that Samuel was at Portland during said month of January.
As to the binding efficacy of the notes tendered, it is objected., that there can be no partnership in the purchase of land, and the case Pitts v. Waugh, et al. 4 Mass. Rep. 424, is selected and pressed upon us as decisive of this. That was an action of the case against John Waugh and Joseph Greely. The note offered in evidence was signed by John Waugh alone.
“ On the plaintiffs offering to read this to the jury, and to prove “ also that before and at the time of making and signing said note, “ the defendants were partners jointly negotiating together in the “ way of merchandizing, particularly in the purchase and sale of “ divers tracts of land, for their mutual advantage, and that said “ note was made and signed by the said Waugh, on the partner- “ ship account aforesaid, and for lands purchased for the joint “ benefit of the defendants, but conveyed to said Waugh. This “ evidence the Judge refused to admit; exceptions were taken, “ and the motion for a new trial was submitted without argu- “ ment.” In the course of the opinion delivered by the late C. J. Parsons, as reported, he is made to say, that “, there was no “ evidence offered that the land was conveyed by the plaintiff to [337]*337“ Waugh and Greeley, or that Greeley in any manner authorised “ Waugh to bind him to the payment of the note : or that the “ plaintiff sold the land on Greeley’s credit, or knew that he had “ any interest in the purchase, or did or could derive any benefit “ from it. This is decisive ; for by the law merchant a man is “ holden a dormant partner, who is not known in the partnership, “because he is interested in the profits'of the trade. And as “ the conveyance was made to Waugh, Greeley can derive no “ benefit from it,” and the Judge repeats, “ however, to prevent “ mistakes, that the law merchant does not extend to speculations “ in land,” and that in that case, “ there was no colour for con- “ sidering Waugh, as an authorised agent of Greeley, within the “ statute of frauds.”
This opinion was made known at the May term, 1808. A marked difference between that case and this is, that this bond is given directly to the two Smiths, and the condition plainly indicates that the notes are to be given by them to the defendant. It is well settled that real estate, by the rules of law, is not governed by the principles applicable to the disposition of partnership property. One partner can convey only his own share in land, though held for the purposes of partnership, unless authorised by his partner, by deed to make conveyance of his portion. The use may be regulated by particular agreements and covenants. In equity, such property obtained by partnership funds, would be treated as stock of the partnership.
Now, by statute of 28th of February, 1829, ch. 431, the interest which any one has by virtue of a bond or contract in writing, to a conveyance of real estate upon conditions to be by him performed, whether he be original obligee or assignee, may be attached on mesne process, or on execution, and sold, and the purchaser have remedy to compel conveyance, by bill in equity.
Unquestionably there must be a mutual interest in the capital, whether it consists in credit, labor, money, or other property, as well as in shares in the profits, to constitute a partnership, as between the parties. And one who contracts for a share of the profits of a particular trade or business, as profits, has, upon principles of public policy as applied to commercial contracts, been [338]*338holden to be a partner, as to third persons. They would be liable for debts .contracted in the regular prosecution of their business. And in this view of the transactions of Edward, and Samuel Smith, as proved in the case, we think the direction of the Judge was correct, that upon the facts proved, if believed, the notes were legally binding upon both. They held themselves out to the world as partners. And they have ratified the acts of Edward in the very step of prosecuting this action, if any such subsequent ratification were required. As no intimation was made that security in mortgage was to be made upon other property than that contemplated to be conveyed, and as there was no objection on that account raised by the defendant, and indeed could not well be raised, until the first deed should be made by him, we do not consider the ground good, now insisted on, that the plaintiffs should have both been present at Portland, and ready to execute the mortgage mentioned in the condition of the bond.
There is more difficulty in coming to a conclusion as to the tender and the alleged refusal. In Leatherdale v. Sweepstone, 3 C. & P. 342, it was observed by Lord Tenterden, that a plea of tender, in practice was very seldom successful, and on that account, he was always sorry to see such a plea on the record. Here is no formal plea of tender, but the plaintiffs ground their claim upon such a state of facts, as they affirm would do them all the service that a plea of tender, in any allowable case, if thoroughly sustained, would give to any party.
If a condition be to pay, &c. at a place certain, without limiting any certain time, if the party to do this, meet the obligee or feoffee at the place, at any time, he may pay. Co. Litt. 211, a. Or if the obligee receives the money at another place, it is sufficient, tho.qgh he need not. Co. Litt. 212. If a place certain be limited for payment, he is not bound to pay at another place. 1 Roll. 443, L. 20 ; Com. Dig. Condition, 9. Neither need the other accept it at another place. 1 Rol. 446, L. 5.
Jones “ agreed that if, upon the appraisal to be had by Hiram “ Rockwood, within sixty days from the date of the deed to be “ given by said Jones,
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Emery J.
—The plaintiffs have sued the defendant for not delivering a deed mentioned in the condition of the bond declared [336]*336on, and with the plea of non est factum, is a brief statement made by the defendant, alleging general performance.
The plaintiffs proved that on the 14th January, 1833, Edward Smith and the defendant being at Portland, said Smith tendered to the defendant, $5969,17 in cash, and two notes signed by the said Edward,, in the name of E. and S. Smith, payable to the defendant or order for $5969,17 in one year with interest, and the like sum in two years with interest; and proved, that the said E. and S. Smith were partners in the business of purchasing real estate, dealing in timber lands, &c., and that their notes, signed by either partner, as the aforesaid-notes were signed, were uniformly discounted at the banks in Bangor, and duly paid. Having made the tender, said Edzuard demanded the deed, to which the defendant replied he should not receive the money or notes as it was going to Mr. Pierce at Bangor, and also added that he should not give a deed at present. Edward, Smith and Samuel Smith, both resided at Bangor, and there was no evidence that Samuel was at Portland during said month of January.
As to the binding efficacy of the notes tendered, it is objected., that there can be no partnership in the purchase of land, and the case Pitts v. Waugh, et al. 4 Mass. Rep. 424, is selected and pressed upon us as decisive of this. That was an action of the case against John Waugh and Joseph Greely. The note offered in evidence was signed by John Waugh alone.
“ On the plaintiffs offering to read this to the jury, and to prove “ also that before and at the time of making and signing said note, “ the defendants were partners jointly negotiating together in the “ way of merchandizing, particularly in the purchase and sale of “ divers tracts of land, for their mutual advantage, and that said “ note was made and signed by the said Waugh, on the partner- “ ship account aforesaid, and for lands purchased for the joint “ benefit of the defendants, but conveyed to said Waugh. This “ evidence the Judge refused to admit; exceptions were taken, “ and the motion for a new trial was submitted without argu- “ ment.” In the course of the opinion delivered by the late C. J. Parsons, as reported, he is made to say, that “, there was no “ evidence offered that the land was conveyed by the plaintiff to [337]*337“ Waugh and Greeley, or that Greeley in any manner authorised “ Waugh to bind him to the payment of the note : or that the “ plaintiff sold the land on Greeley’s credit, or knew that he had “ any interest in the purchase, or did or could derive any benefit “ from it. This is decisive ; for by the law merchant a man is “ holden a dormant partner, who is not known in the partnership, “because he is interested in the profits'of the trade. And as “ the conveyance was made to Waugh, Greeley can derive no “ benefit from it,” and the Judge repeats, “ however, to prevent “ mistakes, that the law merchant does not extend to speculations “ in land,” and that in that case, “ there was no colour for con- “ sidering Waugh, as an authorised agent of Greeley, within the “ statute of frauds.”
This opinion was made known at the May term, 1808. A marked difference between that case and this is, that this bond is given directly to the two Smiths, and the condition plainly indicates that the notes are to be given by them to the defendant. It is well settled that real estate, by the rules of law, is not governed by the principles applicable to the disposition of partnership property. One partner can convey only his own share in land, though held for the purposes of partnership, unless authorised by his partner, by deed to make conveyance of his portion. The use may be regulated by particular agreements and covenants. In equity, such property obtained by partnership funds, would be treated as stock of the partnership.
Now, by statute of 28th of February, 1829, ch. 431, the interest which any one has by virtue of a bond or contract in writing, to a conveyance of real estate upon conditions to be by him performed, whether he be original obligee or assignee, may be attached on mesne process, or on execution, and sold, and the purchaser have remedy to compel conveyance, by bill in equity.
Unquestionably there must be a mutual interest in the capital, whether it consists in credit, labor, money, or other property, as well as in shares in the profits, to constitute a partnership, as between the parties. And one who contracts for a share of the profits of a particular trade or business, as profits, has, upon principles of public policy as applied to commercial contracts, been [338]*338holden to be a partner, as to third persons. They would be liable for debts .contracted in the regular prosecution of their business. And in this view of the transactions of Edward, and Samuel Smith, as proved in the case, we think the direction of the Judge was correct, that upon the facts proved, if believed, the notes were legally binding upon both. They held themselves out to the world as partners. And they have ratified the acts of Edward in the very step of prosecuting this action, if any such subsequent ratification were required. As no intimation was made that security in mortgage was to be made upon other property than that contemplated to be conveyed, and as there was no objection on that account raised by the defendant, and indeed could not well be raised, until the first deed should be made by him, we do not consider the ground good, now insisted on, that the plaintiffs should have both been present at Portland, and ready to execute the mortgage mentioned in the condition of the bond.
There is more difficulty in coming to a conclusion as to the tender and the alleged refusal. In Leatherdale v. Sweepstone, 3 C. & P. 342, it was observed by Lord Tenterden, that a plea of tender, in practice was very seldom successful, and on that account, he was always sorry to see such a plea on the record. Here is no formal plea of tender, but the plaintiffs ground their claim upon such a state of facts, as they affirm would do them all the service that a plea of tender, in any allowable case, if thoroughly sustained, would give to any party.
If a condition be to pay, &c. at a place certain, without limiting any certain time, if the party to do this, meet the obligee or feoffee at the place, at any time, he may pay. Co. Litt. 211, a. Or if the obligee receives the money at another place, it is sufficient, tho.qgh he need not. Co. Litt. 212. If a place certain be limited for payment, he is not bound to pay at another place. 1 Roll. 443, L. 20 ; Com. Dig. Condition, 9. Neither need the other accept it at another place. 1 Rol. 446, L. 5.
Jones “ agreed that if, upon the appraisal to be had by Hiram “ Rockwood, within sixty days from the date of the deed to be “ given by said Jones, it should appear that there is not timber “ on said half township at the rate of three and one quarter [339]*339“ thousand feet of large sound timber to each acre, to allow to “ said Edward and Samuel, for whatever deficiency there should “ be, at the rate of three dollars for each thousand feet; the “ amount to be deducted, in equal sums, from the cash and notes “ to be given to said Jones by the plaintiffs. The deed, money, “ and notes given for the purchase money, to be deposited in the “ hands of Waldo T. Pierce, of Bangor, until the report of the “ said Boclcwood, of the appraisal of the timber shall be made.” Then comes the final proviso: “ if I the said Amasa Jones, “ on the payment of the said sum of seventeen thousand nine “ hundred and seven dollars and fifty cents to me by the said Ed- “ ward and Samuel, in manner aforesaid, shall make, execute, “ and deliver to the said Edward and Samuel, a good and suffi- “ cient deed of warrantee, as aforesaid,” &c.
The plain and natural import of the terms, “ in manner afore- “ said,” and “ as aforesaid,” in relation to this subject, is, that the payment -would be good to him, the defendant, by depositing the money and notes in the hands of Waldo T. Pierce of Bangor, their mutually appointed depositary, and that depositing the deed with him, would be the delivery “as aforesaid,” to the plaintiffs.
It is said that, “ the plaintiffs had a right to waive this provi- “ sion, which was intended for their benefit.” Had Mr. Jones accepted the money and notes, ought it not to be inferred that by the principles of good faith, he would have been bound to deposit them in the hands of Waldo T. Pierce l But according to the stipulation, he had a right to decline becoming insurer of the money and, notes from Portland to the hands of Mr. Pierce of Bangor. This act was to be performed in season by the plaintiffs. The reply of the defendant, that “ he should not receive “ the money or notes, as it was going to Mr. Pierce, at Bangor,” was a full warning to the plaintiffs of the course they should pursue ; and W’e cannot consider the additional remark, that “ he “ should not give a deed at present,” as so direct, peremptory, and unqualified a refusal, as would dispense with the performance by the plaintiffs of their part of the contract. For although Edward demanded the deed, the defendant would have performed that part of his contract by depositing it ip the hands of Mr. [340]*340Pierce, on the leaving there, by the plaintiffs, of the money and notes, within the twenty days. The case, at present, does not show that this duty on the part of the plaintiffs has been performed. If it has been, and it should not be proved that the defendant deposited his deed within the proper period with Mr. Pierce, and has done also what appertained to him to do, the result of a further trial may settle the merits of the case.
Upon the facts now disclosed, we think that the pro forma ruling of the Judge for the purpose of the last trial, by instructing the jury “ that the plaintiffs had a right to perform or tender “ performance at Portland,” cannot be sustained. The verdict is therefore set aside,