He who shares in the profits, which are nothing but the net earnings, should also shard in the losses, if there be any. The moral right of making gains is based upon this principle. The rule is easily laid down ; the difficulty is in its application. Where a part of the profits themselves is the pro-lmriy of the party, he is then a partner. Where their amount merely ascertains the amount of a debt op c]u^y but they themselves do not belong to the party, J ° 1 f7 there it is not a partnership, w ere there no special contract but the case rested on the facts, part of the earnings would be the property of the defendant. The vessel was his • ho bore part of the expense of navigating her. Whelden gave his services, and the residue of the expense. Independent of express agreement, the profits would go according to the value of that which produced them'; that is, according to, the productive value of the stock. In what particulars has the agreement of the parties varied the case? It has only fixed the ratio of, division, by declaring that each party shall have one *91half of thte profits, that is, that Wheldcn, who was to act as master of the vessel, was to pay over one half of the freight she carried, to the owner. These expressions, altho’ in form somewhat like making it a debt,’ do not vary the case; for they arise from the fact, that the freight was in the first instance to be received by him who acted as master*. In truth he was to receive and divide, and even pay.
But there is in this contract a clause, which I think puts the matter to rest, to-wit, “the said Whelden is hereby empowered to invest the proceeds of freight in such merchandize, as he may think proper for mutual Interest.” If a part of the freight was-not the property of Delano, why was his consent necessary to invest it in merchandize; or why should he direct about if, if the whole was a mere contract of hiring, and the earnings referred to, merely to fix the price to he paid. It is nothing more than this: Delano furnished the vessel, and was to pay part of the expense of navigating her. Wheldcn was to act as master, and pay the balance of the expenses. Freight was to he sought, and profits made with this combined stock. A loss has been incurred. They who were to reap the profits, must bear the loss.
Pub. CuBIAM. — 3uDGMEtrT AFFIRMED.