¶1The parties bought the wool together; and might, undoubtedly, have been considered partners as to third persons. The statement signed by Smith, dated the 14th of September, 1844, and given in evidence by the plaintiff, and which may be considered, therefore, as the declaration of both, after all the purchases, except a small amount, had been made, goes to show that their interests in the wool, at that time, were very unequal; that of the defendant being but a small part of the whole. If it was a copartnership, and the defendant was interested in the firm only in that proportion, the referee has made a mistake in charging him with one half of the deficiency. But the share of the loss to be borne, and of the profits to be divided, do not necessarily bear an exact proportion to the interest of the partners in the partnership property. That may depend upon agreement. (Smith v. Watson, 2 Barn. & Cress. 401. Gould v. Gould, 6 Wend. 263. 3 Kent, 28. Peacock v. Peacock, 16 Ves. 50. Coll, on Part. § 167, et seq. 18 Wend. 185.) One witness swore that the defendant was agent; and further, that the plaintiff had said if there was any loss on the wool, he should have to sustain it. But it did not appear, whether he referred to a contract in this respect; or to the ability of'the defendant; or was stating his view of the law. If, as is alledged, the circumstances of the defendant at that time were doubtful, that perhaps would explain the remark. The test of partnership seems to be that if one is to receive a stipulated sum in proportion to a given quantum of the profits, as compensation for his labor and services, he is not liable to be charged as a partner. But he is chargeable as such if he participate in the profits of a trade or business, and has an interest in the profits as profits. (Perkins’ Coll, on Part. §§ 35, 44, and notes. Champion v. Bostwick, 18 Wend. 184. Ex parte Hamper, 17 Ves. 404. Vanderburgh v. Hull, 20 Wend. 70. 3 Kent, 33.)
¶2Under all the circumstances of this case, I think the finding of the referee, that the defendant was a partner, within this rule, as a question of fact, cannot be disturbed. And every man who is entitled to share in the profits of a trade or business as profits, *305ought, prima facie, to hear a share of the loss. (Grace v. Smith, 2 W. Bl. 1000. Dob v. Halsey, 16 John. 34. Coll on Part. §§ 16, 81, and notes.) The judgment should be affirmed.
¶3Willard, Hand and Cady, Justices.]
¶4Judgment affirmed,