Vanderburgh v. Hull & Bowne

20 Wend. 70

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

By the Court, Nelson, C. J.

It is perfectly clear, that Sherwood had not a joint interest with the plaintiffs in the foundery. The only ground upon which it was insisted that he was interested, and therefore incompetent as a witness, was that in addition to his salary, he was to have one third of the profits of the establishment, if any were made. The witness released all right to any profits, and thereby discharged his interest; and the only question is, whether he was a partner 1 On his voire dire, he declared, that by the agreement between him and the plaintiffs, he was not to be liable for losses. It appears to me, the case is not one of partnership, but falls within the class of cases -where the share of the profits is given and intended as payment for the labor of the party. It is like the case of the agent, who received a proportion of the profits for his trouble, but had no interest in the capital, Myers v. Sharpe, 5 Taunt. 74 ; or the broker who received for his profit, whatever he could obtain above a stated sum on the sales, by way of remuneration for his labor, Benjamin v. Porteous, 2 H. Black. 590; or the sailor employed in the whale fishery, who received a certain proportion of the profits as wages, Wilkinson v. Frasier, 4 Esp. N. P. Cas. 182. See also 1 Campb. 331, n.; Carey on Part. 9, 10, 11; 4 Maule & Selw. 240. The wages of the witness were |300 per annum, and a contingent interest in one third of the profits. He was not to be answerable for losses, which confirms the view that the arrangement was made simply in reference to the measure of compensation. He received a fixed sum in gross, with an increase upon a given basis and ratio.

Judgment affirmed.

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See the observations of Chancellor Walworth upon this question, in Champion v. Bostwick, 18 Wendell, 184, 5.