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By the Court,

Whitman, O. J.-:

To the bill of appellant a demurrer was sustained, and judgment had oh failure to amend, whence this appeal.

Only one point of demurrer can be noticed, as only one is properly taken, “that the complaint does not state facts sufficient to constitute a cause of action.” These are the allegations of the bill, to which the demurrer is directed: “ That on the 21st day of August, 1871, and for a long time prior thereto, the said defendant Samuel Tallman, and the said James M. Groves and W. H. Groves were partners, doing business under the firm name of ‘Tallman & Groves,’ *180and were carrying on the business of merchandising and other business at the said town of Belmont, County of Nye aforesaid. That the property, assets, profits and losses of the said partnership were owned and divided as follows, to wit: the said Samuel Tallman. owned and was entitled t'o one half part or share of said partnership property, assets and profits, and was liable and responsible for one half of the losses and debts of the said partnership. That the said James M. Groves and W. H. Groves each owned and was entitled to one quarter part or share of the said partnership property, assets and profits, and was liable and responsible for one quarter of the losses and debts of said partnership.”

The appellant contends that he has pleaded sufficiently in that he has pleaded the ultimate facts. There is his mistake: the pleading is rather a compound of conclusions of law and probative facts, which it is somewhat difficult to separate.

As between partners, the ultimate facts whence a partnership is deduced are — first, the agreement; second, its execution ; summed up as the executed agreement. There can be no partnership between parties, so far as they solely are concerned, without a consent thereto and fulfillment thereof. There may be an agreement without execution, in which case no partnership, arises save by decree of specific performance, or there may be an apparent execution by acts and circumstances, which as to the world would show and thereby create a partnership but as between the parties raise none, although a partnership agreement may be implied as well as express.

“It should be added, that whether two or more persons are partners as to each other, must generally and perhaps always be determined by the intention of the parties as the same is expressed in the words of their contract, or may be gathered from the acts and from all the circumstances which are available for the interpretation or construction of the contract.” Parsons on Partnership, 59; Chase v. Barrett, 4 Paige, 148; Hazard v. Hazard, 1 Story, 371.

*181Now, the agreement between the parties to this bill is no where stated. It may be inferred,- and probably in absence of demurrer the pleading might have stood as a defective statement of fact. Treadway v. Wilder, ante, 91.

The conclusion of a partnership is alleged, and that property was owned, losses shared, and profits divided in a certain ratio. In the absence of any express agreement, such of these as are' facts would tend to prove, uncontradictedwould prove, a partnership between the parties; but in the absence of any express agreement so to own, share and divide, or in the face of an express agreement to the contrary, they might be susceptible of explanation.

The ultimate fact to be proven between partners is the executed agreement; that of course may be shown in various ways. From that proven ultimate fact, the aggregation perhaps of many, the law draws the inference of partnership. Dwinel v. Stone, 30 Me. 384; Everett et al. v. Chapman et al., 6 Conn. 347; Terrill v. Richards, 1 Nott & McCord, 20; Daggett v. Jordan, 2 Fla. 541.

This ultimate fact is not averred in the present bill. The legal inference is drawn, and probative acts and circumstances alleged. This is not a statement of facts sufficient to constitute a cause of 'action; the very gist is omitted. So the demurrer was well taken, and the judgment of the district court is affirmed.

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