Pott and Others, Assignees of Weatherby and Others, Bankrupts, v Eyton and Jones
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 1846 |
| Date | 22 May 1846 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 13
IN THE COURT OF COMMON PLEAS
S. C. 15 L. J. C. P. 257. See Mollwo v. Court of Wards, 1872, L. R. 4 P. C. 434.
[32] pott and others, Assignees of Weatherby and Others, Bankrupts, v. eyton and jones. May 22, 1846. [S. C, 15 L. J. C. P. 257. See Mollwo v. Court of Wards, 1872, L. E. 4 P. C. 434.] One who takes a share of the profits, as such, of a trading concern, thereby becomes a partner as to third persons, on the ground of those profits forming a portion of the fund upon which creditors have a right to rely for payment.-Yet the receipt of a percentage upon the gross amount of sales made to certain customers, by the person who recommended such customers, does not constitute him a partner as against third persons.-A., who was concerned in a colliery, in the year 1830, built and stocked a general shop in its neighbourhood, for the purpose of supplying goods to the workpeople, placing B. there to conduct the business; A. receiving for his own use 7 per cent, upon the amount of the gross sales made to the miners; and B. taking all the rest of the profits of the concern, from whatever source derived. A.'s name appeared over the shop-door, and in the excise licences; and, down to the year 1834, all the goods supplied to the shop were purchased and paid for by or in the name of A. In that year it was agreed between A. and B., that the latter should thenceforward buy all goods that were required for the shop, and that the former should receive only 5 per cent, upon the amount of sales to the miners. After this new arrangement had been come to, B., who had several other shops, opened an account with a bank at Holywell, and, on the failure of the bank in 1839, there was a balance due to the bankers on that account exceeding 20001. There was no evidence to shew that credit was in fact given to A. by the bank, or that they were aware that his name had been placed over the shop door, or that they supposed him to be a partner at the time the debt was contracted.-In an (d) 12 East, 317. And see Gordon v. Ellis, 7 M. & G. 607, 8 Scott, N. K. 290. () 12 M. & W. 664. " Since that act, a company of this kind is in the nature of a corporation, not an ordinary copartnership suing jointly; so that notice to one of its members is not notice to all." S. C. 1 Dowl. & L. 642, 649. (b) And see Edwards v. The Grand Junction Railway Company, 1 Mylne & Craig, 650, 659, 14 POTT V. EYTON 3 C. B. 33. action by the assignees of the bankers against A. and B., to recover the balance, the jury having negatived the existence of an actual partnership between A. and B., or that A. had, with his own permission, been held out as a partner, the court refused to disturb the verdict. Assumpsit for money paid, &c. by the bankrupts before their bankruptcy. The defendant Jones suffered judgment by default; the defendant Eyton pleaded non assumpsit, and several special pleas, which it is unnecessary to notice. At the trial before Tindal, C. J., at the sittings in London after last Michaelmas term, it appeared, that, in 1828, the defendant Eyton was concerned in a colliery at Mostyn, in Flintshire; and an agreement was entered into between him and Jones for opening a tally shop at Mostyn Quay (not far from the colliery), principally with [33] a view of supplying goods to the workmen at the colliery. Eyton built the shop, and his name was placed over the door; licences to sell tea, &c., were taken out in his name; and the invoices for goods that were supplied to the shop, were made out in Eyton's name, who paid for the same. Jones managed the shop. The workmen at Eyton's colliery were supplied with goods from it, for which they settled at the colliery when their wages were paid, until the truck system was...
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