¶1The demurrer to the evidence was properly overruled. There was no defect of parties. The defendant relies upon Railway Co. v. Hucklebridge, 62 Kan. 506, where it was held that the plaintiff could not recover in the action because it appeared that the claim sued upon belonged to a partnership. The controlling fact in that case was the agreement between the plaintiff and the witness to share the profits and the losses, which it was held constituted them partners. In this case the evidence clearly shows that there was no partnership, but merely an arrangement for a division of the net commission on one class of sales, in lieu of office rent and advertising. The case falls within the principle declared in Shepard v. Pratt, 16 Kan. 209, that a sharing of the profits is not always conclusive evidence of a partnership. That circumstance here is overborne by other controlling facts.
¶2The judgment is affirmed.