¶1The opinion of the Court was delivered by
¶2Where goods in partnership are intended for sale, in which consists the profits of the concern, a sale by one partner is, not only, as it relates to the purchaser, but as it relates to the partners between themselves, the joint act of all the partners. To consider such act of the seller of partnership property, as a tort, would be to embarrass, if not defeat the very intention of the partnership — profit by sale. The other partners have a right to their share of the price only.
¶3Where personal property is kept by partners for profit in the use only, as in the case of tools, implements and machinery, in carrying on a Manufactory in partnership, the sale of such tools, implements, or machinery, by one partner, may, by the other partners be treated as a tort, if made without their consent or approbation, although the sale may be considered as good to the purchaser against all.
¶4The present, however is a case different from either of the above cases. In this case, the defendant cannot be considered as a partner, or, in any sense, a joint owner of the property. From the evidence in this case, it appears that the plaintiff had his option, either to pay the defendant for sawing the logs into boards, or permit him to take one half the boards — the customary share for sawing. After the sawing, the defendant had, at most, only a lien on the boards for the price of sawing, or for the usual share of the boards. It seems that the plaintiff had not made his option, nor had he been called upon, to make his option, whether he would pay for sawing or give the defendant one half of the boards. As the property was divisible, without loss or injury, the defendant might have made a fair division, and sold his half of the boards as his own. But, instead of this, he sold the whole of the boards as his own ; in this he was guilty of a tort, and the action of trover well lies.
¶5In assessing damages, the jury deducted the price of sawing from the value of the boards. This is the justice of the case.
¶6The verdict must stand.